IN THE SUPREME COURT OF THE STATE OF GEORGIA

MATTHEW CHAN,
Appellant, DOCKET NO.: S14A1652

LOWER COURT NO.:
-against - SU13DM409

LINDA ELLIS, COURT OF APPEALS
Appellee DOCKET NO.: A14A0014





SUPPLEMENTAL BRIEF OF APPELLANT MATTHEW CHAN



Respectfully Submitted,

Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38
th
Street
Third Floor
New York, NY 10016

William J. McKenney
Georgia Bar No.: 494725
McKenney & Froehlich
Attorneys for Appellant
50 Polk Street NW
Marietta, GA 30064
i

TABLE OF CONTENTS


1. Table of Authorities ................... ii

2. Preliminary Statement 1

3. Statement of Facts .. 1

4. Argument .. 1
POINT I
RECENT DECISIONS HAVE
RECOGNIZED THAT THE FIRST AMENDMENT
AND THE COMMUNICATIONS DECENCY ACT
PROVIDE BROAD PROTECTION TO INTERNET
SPEECH THAT IS REPUGNANT EVEN IF IT IS
DIRECTED AT OR IS ABOUT ONE PARTICULAR PERSON


a. Virginia Federal Court holds Neo-Nazis posting of attorney and wifes personal
information and his posts mentioning possible attacks was protected speech and not
subject to restraint or sanctions 2

b. Eleventh Circuit upholds conviction for threatening the President of the United
States due to context and nature of defendants Facebook posts .. 8

c. Sixth Circuit holds that Section 230 of The Communications Decency Act
protects a blog site owner from the defamatory posts of others . 9



5. Conclusion . 13

6. Certificate of Service . 14






ii




TABLE OF AUTHORITIES

Cases
Bartnicki v. Vopper, 532 U.S. 514, 527.6
Fair Housing Council of San Fernando Valley v. Roomates.com LLC, 521
F.3d 1157 (9
th
Cir. 2008) ........................................................................... 12
In re White, 2013 WL 5295652 (E.D.Va. Sept. 13, 2013) ............................. 2
Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398 (6
th
Cir.
June 16, 2014) ............................................................................................. 9
U.S. v. Castillo, 564 Fed. Appx. 500 (11
th
Cir. May 2, 2014) ........................ 8
U.S. v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003) ........................... 5
Watts v. United States, 394 U.S. 705 (1969) .................................................. 9
Statutes

O.C.G.A. 16-5-92 13









1
PRELIMINARY STATEMENT

This supplemental brief is submitted by Appellant Matthew Chan
(Appellant) to discuss relevant cases that have been decided since the
submission of the original briefs in this appeal.
STATEMENT OF FACTS
The Appellant incorporates by reference the Statement of Facts set
forth in Appellants Brief.
ARGUMENT
POINT I
RECENT DECISIONS HAVE
RECOGNIZED THAT THE FIRST AMENDMENT
AND THE COMMUNICATIONS DECENCY ACT
PROVIDE BROAD PROTECTION TO INTERNET
SPEECH THAT IS REPUGNANT EVEN IF IT IS
DIRECTED AT ONE PARTICULAR PERSON

Since the submission of briefs to the Georgia Court of Appeals in this
case, several courts around the country have had the opportunity to analyze
and balance the right of courts and individuals to address perceived wrongs
over Internet language and the languages protection under the First
Amendment and the Communications Decency Act of 1996 (CDA). These
recent cases have reasserted the First Amendments broad and sweeping
protection and the distinction between protected speech and true threats.
These cases also serve to reinforce that Appellants conduct here was the
2
type of freewheeling, robust speech common to the Internet and did not
constitute actionable true threats or attempts to intimidate Appellee.
a. Virginia Federal Court holds Neo-Nazis posting of attorney
and wifes personal information and his posts mentioning
possible attacks was protected speech and not subject to restraint
or sanctions

The Eastern District of Virginia was asked to sanction Neo-Nazi
William White after White made a series of posts about Kevin W. Mottley
of Troutman Sanders LLP (Mottley) and his wife. In re White, 2013 WL
5295652 (E.D.Va. Sept. 13, 2013) (only citation presently available)
1
.
Mottley was prosecuting a Fair Housing Discrimination action in the District
surrounding allegations that a housing complex was discriminating against
black residents based on their race. Id. at 2. White made numerous posts
attacking the case and Mottley on various Internet forums including one to
his white supremacist groups home page that published his wifes full
name. The post then purportedly admonished his comrades
not to go by the [Mottley] home at [Mottley's home address], or call them at [Mottley's
phone number]. Do not open credit cards in their name, empty their bank accounts by
Internet, hack their emails, or otherwise invade their privacy.

Id at 14. This resulted in Mottley filing a motion for sanctions; the court then
conducted an evidentiary hearing on the motion. Id.

1
Since there is no official or LEXIS citation, I have attached a copy of this case as an exhibit to this Brief
3
At the hearing, Mottley testified that, upon learning of the posting, he
and his law firm took a number of steps designed to ensure his safety,
including notifying local law enforcement (which resulted in increased
safety patrols in his neighborhood) and hiring private security guards to
surveil his home. Mottley explained that he perceived th[e] posting ... to be
a threat to [his] safety, not only [his] physical safety ... but also the security
of [his] financial accounts, [his] home, and most importantly, of [his] wife,
who was not involved in the underlying case. Mottley stated that he and his
family suffered feelings of fear and intimidation as a result of White's
postings

and that the postings caused him to question his continued
representation of the plaintiffs in the underlying discrimination litigation.
Id. at 24. Mottley also provided the court with various exhibits of Whites
prior writings which talked about killing people opposed to his views. Id.
After the hearing, White again posted the Mottleys home address and
phone number as well as the home address of a Justice Department lawyer
participating in the case advising his comrades to:
Write to them. Call them. Tell them what you think. Do not threaten them. Do not harass
them. Do not commit crimes against them, at this point in time or any other point in time. But,
legally, contact them and share with them your point of view. You have a right to contact
people who are in activities that draw public attention. They do not have a right to conduct
their activities in secret or to hide from you. And if they do something irrational, like hire
police bodyguards to protect them from threats that exist wholly in their imagination, we are
in now [sic] way responsible for that

4
Id. at 19. He then posted this additional comment:
I saw the movie Funny Games the other night, and it occurred to me:
Civil Rights Attorney Kevin Mottley of Troutman Sanders and his wife would star
perfectly in the role of the family. [sic]Anyone think I'm off base on that?


Id.at 36. The court noted that Funny Games tells the story of a middle-
class family [who] submits both physically and mentally to the torture,
violence, and death foisted upon them by two young, unexpected white-
gloved visitors at their vacation retreat near the lake. Id.
In addition to the commentary regarding the underlying litigation,
Mottley offered other examples of White's writings, including comments
endorsing the murder of white people opposed to racism; postings
hypothesizing about the effect on the 2008 presidential election were then-
candidate Barack Obama to be assassinated; and Whites postings calling for
the murder of a Canadian civil rights lawyer whose home address White
had also published. Id. at 38. The court also highlighted:
[o]ne particularly deplorable posting [that] detailed White's exhibitionistic
and self-serving view of his physical altercation with an African American
crack dealer. White authored the post . . . after he was acquitted of the
resulting assault charge. In it, White lamented the state of his community
and what he viewed as a failure to act on the part of law enforcement.
Justifying his actions, White stated, I have additionally become convinced
that the murder of wicked men, when conducted in a selfless manner, is a
path to transcendence and to God. . . .White recommend[ed] to all reading
this that they consider taking a wicked mana crack dealer, a pimp, an
NAACP official defending black crime, or perhaps a newspaper writer
supporting themand killing them with your bare hands as a test of what I
have to say.
5
Id.
Despite all this violent rhetoric and despite the posting of this personal
information about Mottley, the District Court upheld the hearing
magistrates finding that Whites speech was protected by the First
Amendment. In so doing, the court undertook an analysis of all the Federal
Circuits to determine whether, in deciding if speech constituted a true
threat, the court should apply a listener-based or reasonable person-
based approach. The court noted the Eleventh Circuits position that such a
distinction is irrelevant because [b]oth tests are basically a listener-based
test in that, even under the [listener-based] approach the jury would have to
decide how a reasonable listener would understand the communication in
order to determine how a reasonable speaker would foresee the effect of his
or her communication. In Re White 2013 WL 5295652 at page 43 (citing
United States v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003)).
The court held that the various postings did not amount to true
threats to inflict violence upon Mottley and his wife. Id. at 51. The court
also said the Funny Games post was similarly protected because it at
most conveyed a serious desire that [Mottley] be harmed by others and not
a serious expression of [White's] intent to do harm from the perspective of
a reasonable recipient. Id. at 52 (emphasis in original). The court added
6
Thus, although the Court finds the republication of Mottley's personal,
identifying information repugnant, based on the language of the postings it
was not apparently unlawful. Id. at 53 (citing, among other cases, Bartnicki
v. Vopper, 532 U.S. 514, 527(2001)) (Defendant cites no authority for the
proposition that truthful lawfully-obtained, publicly-available personal
identifying information constitutes a mode of constitutionally prescribable
speech. Rather, disclosing and publishing information obtained elsewhere is
precisely the kind of speech that the First Amendment protects.)
More importantly for the present issue before this Court the White
court then analyzed and stressed the importance of the context in which the
statements were made. While first noting that Internet speech is entitled to
no greater or lesser protection under the First Amendment, the court stated
that the Internet provides a dynamic, multifaceted category of
communication [that] includes not only traditional print and news services,
but also audio, video, and still images, as well as interactive, real-time
dialogue. Id. at 55. It found that Whites postings on Internet forums as
opposed to private direct communications to the Mottley weighed in favor of
First Amendment protection; this was especially true, the court stated, when
the objectionable posts were taken in context with all of Whites other
myriad posts:
7
White, indeed, is a prolific writer who regularly publishes to the Internet his
criticisms of people and groups with whom he disagrees. This fact is
relevant to the Court's determination of whether a subset of such writings
constitute true threats, because it speaks to White's intent in authoring the
postings at issue here. Specifically, the fact that White regularly publishes
his social and political views on the Internet suggests that, when he
expressed similar views concerning the underlying litigation, generally, and
Mottley, specifically, he did so with the intent to engage in similar political
or social discourse.



Id. at 56. The court also said it was important that the posts were available to
the general public and not just privately transmitted to Whites Neo Nazi
followers. Id. The court acknowledged that the speech did cause Mr.
Mottley to be in fear and take action to protect himself and his family and
that two early morning hang-up calls were made to the Mottleys home
phone. This evidence was not dispositive however, merely corroborative
that the postings were true threats. Rather, the court stated, it was more
important that there was no evidence that the many posts of White were ever
directly attributed to any acts of violence.
In concluding that it would not sanction or restrain White, the court
stated that [a]lthough the court is sympathetic to Mottleys plight and the
very real fear that Whites postings inflicted on him and his family
sanctioning White for his Constitutionally-protected speech would not be an
appropriate exercise of discretion. Id.
8
Appellants posts come nowhere near the language used by White; his
prior writings do not propose to incite anyone and did not incite anyone to
violence; the evidence about Appellees fears caused by the post pales in
comparison to the Mottleys evidence; the extensive history and breadth of
Appellants writings offline (as an author and publisher of several books,
ebooks, and audio programs) and online (as a blogger, web publisher, forum
administrator, and online community leader), and the thousands of other
substantive posts on the ELI Forums show that the postings were not true
threats but rather done with the intent to engage in similar political or social
discourse.

and were therefore protected speech.
b. Eleventh Circuit upholds conviction for threatening the
President of the United States due to context and nature of
defendants Facebook posts

In U.S. v. Castillo, 564 Fed. Appx. 500 (11
th
Cir. May 2, 2014), the
defendant was convicted in the District Court for the Middle District of
Florida of making a threat to injure or kill the President of the United States.
When someone posted a picture of President Barack Obama on Facebook,
Castillo commented, [T]hat's the last straw. If he gets re-elected, I'm going
to hunt him down and kill him and watch the life disappear from his eyes.
When another Facebook poster informed Castillo that threatening the
President was a federal offense and that the Secret Service tracked down
9
people who posted threats on social media, Castillo responded, I wouldn't
call it a threat but more of a promise. Let them come after me. Be more than
happy to take a few of them with me. Id. at 503.
In upholding his conviction, the Eleventh Circuit distinguished the
case from Watts v. United States, 394 U.S. 705 (1969) where during a
protest against the Vietnam War a protester stated If they ever make me
carry a rifle the first man I want to get in my sights is L.B.J. The other
protesters in Watts laughed at the comment, leading the Supreme Court to
conclude that it was not a true threat. U.S. v. Castillo, 564 Fed. Appx. at 503.
Because the defendant in Castillo reiterated his intention after being advised
of the criminal nature of it, the court held that it rose to more than the
vehement, caustic and sometimes unpleasantly sharp attacks on
politicians protected by the First Amendment. Id.
Here, the context of Appellants posts and the reaction of the readers
of it is similar to the Watts case and reflects that there was no intention to
inflict harm on Appellee in the manner of the true threat in Castillo.
c. Sixth Circuit holds that Section 230 of The Communications
Decency Act protects a blog site owner from the defamatory posts
of others

In Jones v. Dirty World Entertainment Recordings LLC, 755 F.3d 398
(6
th
Cir. June 16, 2014), a cheerleader for the Cincinnati Bengals brought an
10
action asserting state-law defamation claims against operators of
TheDirty.com, a user-generated, online tabloid. After judgment was entered
on a jury verdict in the cheerleader's favor, the defendants appealed. The
Sixth Circuit Court of Appeals held that the defendants had immunity under
the CDA from plaintiff's claims even though the defendants made comments
about the derogatory posts.
The plaintiff in Jones was the subject of several negative, anonymous,
submissions on TheDirty.com. For example, after a visitor to the site posted
a photograph of plaintiff and speculated that she had two sexually
transmitted diseases, one of the operators of the site commented Why are
all high school teachers freaks in the sack? Jones, 755 F.3d at 403. After
the site refused to take the content down, even after plaintiff sent twenty-
seven emails asking for the content to be taken down, plaintiff filed suit in
Federal District Court. The suit garnered national attention which led to even
more harsh posts about plaintiff specifically and the Bengals cheerleading
squad in general. Those posts were again commented upon by the site
operator who complimented The Dirty Army for the posts by posting
Note to self: Never try to battle the DIRTY ARMY and I love how the
DIRTY ARMY has a war mentality. Id. at 404.
11
In reversing the judgment and dismissing the action, the Sixth Circuit
noted that the CDA provides broad federal immunity to any cause of action
that would make service providers liable for information originating with a
third-party user of the service. Id. The court also noted that, via the CDA,
Congress intended to treat the Internet differently in that, pre-CDA and in
situations outside the Internet, publishers could be held responsible for the
defamatory content of articles written by others. The court acknowledged
that close cases ... must be resolved in favor of immunity, lest we cut the
heart out of section 230 by forcing websites to face death by ten thousand
duck-bites, fighting off claims that they promoted or encouragedor at least
tacitly assented tothe illegality of third parties. Id. at 409.
The Jones court said the only issue to be determined was whether by
the comments made to the posts and the encouragement of discussion about
the plaintiff, the site operators developed the information about plaintiff
therefore acting as content generators and not just service providers. Id.
The court held that merely commenting and even editing the post would not
amount to development of the material unless it materially contributed to
the illegal content of the posts. Id. at 411-412.
The court also held that the site could not be responsible for the
content merely by refusing to take down the post and by continuing to
12
display them. To do so would render the CDAs immunity meaningless as a
practical matter. Id. at 412 (citing Fair Housing Council of San Fernando
Valley v. Roomates.com LLC, 521 F.3d 1157 (9
th
Cir. 2008). Finally, the
court also held that a website operator cannot be responsible for what
makes another party's statement actionable by commenting on that
statement post hoc. Jones, 755 F.3d at 415.
Here, the court below held Appellant responsible for the content on
ELI posted by others and for refusing to take that content down at the time
of the hearing. Appellant was constantly berated by opposing counsel for not
taking down posts admittedly placed on ELI by others. Unlike the
defendants in Jones, however, Appellant was never asked to take any of the
posts down and none of the posts contain defamatory material. Jones
establishes that Appellant had no obligation to take down any third partys
posts and that he cannot be held responsible for any of the content generated
and uploaded by third parties due to the broad immunity provided by the
CDA.




13
CONCLUSION
All of the recently decided cases cited in this brief support the reversal
of the judgment below because they establish that Appellants conduct is
protected by the First Amendment and the Communications Decency Act of
1996. Additionally, since all of Appellants conduct is legal and protected it
cannot amount to stalking or harassment under Georgias stalking
statute which is limited by O.C.G.A. 16-5-92, which states that the stalking
law shall not apply to persons engaged in activities protected by the
Constitution of the United States or of this state.
Respectfully Submitted,

/s/ Oscar Michelen /s/ William J. McKenney
Oscar Michelen William J. McKenney
Georgia Bar No.: H10048 Georgia Bar No.: 494725
Cuomo LLC McKenney & Froehlich
Attorneys for Appellant Attorneys for Appellant
9 East 38
th
Street 50 Polk Street NW
Third Floor Marietta, GA 30064
New York, NY 10016 (678) 354-4700
(212) 448-9933 wjm@wjmlaw.org
omichelen@cuomollc.com






14
CERTIFICATE OF SERVICE
This is to certify that in accordance with Georgia Supreme Court Rule
14, I have on this day served this Supplemental Brief and Exhibit before
filing with the Court by mailing a copy of same to the opposing counsel
listed below in a properly addressed envelope with adequate postage:

Page, Scrantom, Sprouse, Tucker, Ford
Attorneys for Appellee
1111 Bay Avenue
Third Floor
Columbus, GA 31901

Mr. Timothy B. McCormack
Amicus Filer on Behalf of Appellee
167 Lee Street
Seattle, WA 98109

This 5
th
day of September 2014

/s/ Oscar Michelen
Oscar Michelen
Georgia Bar No.: H10048
Cuomo LLC
Attorneys for Appellant
9 East 38
th
Street
Third Floor
New York, NY 10016
(212) 448-9933
In re William A. WHITE, Movant/Respondent.
1

United States of America, Plaintiff,
and
Annette Reddick, et al., Intervening Plaintiffs,
v.
John Crockett Henry, et al., Defendants.
Civil No. 2:07cv342.
Sept. 13, 2013.
Attorneys and Law Firms
Rebecca Kim Glenberg, American Civil Liberties Union Foundation, Richmond, VA, for Movant/Respondent.
Lori Keitz Wagner, Rebecca Byfield Bond, United States Department of Justice, Washington, DC, Susan Lynn
Watt, United States Attorney's Office, Norfolk, VA, for Plaintiff.
Anthony F. Troy, Eckert Seamans Cherin & Mellott LLC, Stephen Charles Piepgrass, Troutman Sanders LLP,
Richmond, VA, for Intervening Plaintiffs.
Barry Randolph Koch, Inman & Strickler PLC, Virginia Beach, VA, for Defendants.
OPINION AND ORDER
MARK S. DAVIS, District Judge.
*1 This matter is before the Court on remand from the United States Court of Appeals for the Fourth Circuit for a de
novo review of Magistrate Judge Stillman's Order Denying Intervening Plaintiffs' Motion for Sanctions and for
Issuance of a Rule to Show Cause to William Bill A. White (Magistrate Judge Order) and Intervening Plaintiffs'
objections thereto. ECF Nos. 98, 128. On July 17, 2013, the Court held a hearing in this matter. The Court has
carefully considered the arguments made at the hearing, as well as the extensive record, which includes the
thorough Magistrate Judge Order, Intervening Plaintiffs' objections thereto, the numerous briefings concerning
those objections, and the orders and opinions of the original District Judge and the Fourth Circuit. For the reasons
discussed below, the Court, having conducted a de novo review of the Magistrate Judge Order and objections
thereto, hereby ADOPTS AND APPROVES the findings and recommendations set forth in the Magistrate Judge
Order, as supplemented by this Order. Accordingly, the Court DENIES Intervening Plaintiffs' motion for sanctions.
I. BACKGROUND
Intervening Plaintiffs' Motion for Sanctions presents this Court with a significant, yet vexing, question about the
proper balance of constitutional powers and protections. Intervening Plaintiffs seek an award of sanctions against
nonparty Respondent, William A. White (White), under the inherent powers that this Court derives from Article III
of the United States Constitution. Their request for relief is based on the content of several Internet blog postings
that White authored during the course of the underlying dispute. These postings paired White's criticisms of the
Court, its processes, and the litigants appearing before it, with expressions of his anti-Semitic and white
supremacist views and, at times, with the personal, identifying contact information of the attorneys involved. The
Court's resolution of this matter, therefore, requires it to consider not only the scope of its inherent powers,
particularly in light of White's status as a nonparty to the litigation, but also the status of White's numerous Internet
postings under the First Amendment. Upon its resolution of these significant threshold questions, the Court must
determine the proper balance between its own exercise of constitutional authority and any First Amendment
interest White may have had in his online speech. Before considering these substantial questions, the Court
reviews the extensive factual and procedural history of this case.
II. FACTUAL AND PROCEDURAL HISTORY
This matter has a long and detailed history, one that has, at various points, been interrupted by unrelated (although
factually similar) proceedings involving White. The Court reviews such historywhich dates back to 2006in its
entirety, to give a comprehensive account of the questions presently before the Court and the manner in which
those questions developed in this and other proceedings.
A. Underlying Litigation
*2 The underlying litigation involved claims brought by the United States (United States or Plaintiff) against a
Virginia Beach apartment complex owner, John Crockett Henry (Henry), for alleged violations of the Fair Housing
Act, 42 U.S.C. 3601 et seq.,(the Act). Henry operated his apartment complex under the federally subsidized
Section 8 Housing Choice Voucher Program, also known as the Section 8 Moderate Rehabilitation Program. As a
participant, Henry rented units to applicants who qualified through the City of Virginia Beach's Department of
Housing and Neighborhood Preservation, which administered the Section 8 housing subsidy program under a
contract with the Department of Housing and Urban Development (HUD).
The underlying dispute arose when five (5) residents of Henry's complex and their minor children filed complaints
with HUD, between August 2006 and February 2007, alleging that Henry and his company, Henry LLC of Virginia
Beach (Henry LLC), (collectively Defendants), had instigated and engaged in discriminatory and harassing
treatment based on the complainants' race and family status.
2
As required by the Act, the Secretary of HUD
conducted an investigation and, on April 26, 2007, issued a Determination of Reasonable Cause and a Charge of
Discrimination charging Defendants with engaging in discriminatory practices in violation of the Act. Compl. 13,
ECF No. 1.
On or about May 18, 2007, the HUD complainants elected to have the Charge of Discrimination claims resolved in
a federal civil action, pursuant to 42 U.S.C. 3612(a). The Secretary of HUD authorized the Attorney General to
commence this action and, on July 25, 2007, the United States filed the underlying complaint. Compl. 15, ECF
No. 1. On August 23, 2007, the HUD complainantsAnnette Reddick, Tasha Reddick, Tiese Mitchell, Crystal
Lewis, Arlene Carter, and their minor children, R.C., Z.C., J.J., J.M., and J.M (Intervening Plaintiffs)moved for
leave to intervene in the litigation, which motion the Court granted by Memorandum Order entered on October 1,
2007.
3
ECF Nos. 9, 13, 23. That same day, Intervening Plaintiffs filed their Intervenor Complaint alleging that
Defendants' discriminatory housing practices violated the Act and other state and federal statutes. Intervenor
Compl. 1821, ECF No. 25.
B. White's Involvement in Underlying Litigation
William White is the Commander of the American National Socialist Workers' Party (the ANSWP), which he
formed in 2006. White was not a party to the underlying litigation. Rather, he inserted himself in the dispute
between Intervening Plaintiffs and Defendants prior to the commencement of the action when he sent packages to
several tenants of Henry's complex, including Intervening Plaintiffs.
4
Each package included a letter and a copy of
the May 2007 issue of the National Socialist, White's neo-Nazi magazine. The letter, dated May 23, 2007, was
printed on ANSWP letterhead (which featured a shield bearing a Nazi swastika) and contained numerous racial
epithets and threatening language.
5
The magazine cover displayed a large swastika and the words, The Negro
Beast sprawled across the image of an African American child holding what appears to be a large rifle. Like the
cover, the editorials and articles in the magazine included blatantly anti-Jewish and anti-African American
commentary.
*3 Although White stated in the May 23, 2007 letter that he did not know Defendants, his statements concerning
his awareness of and discontent with the tenants' complaints prompted counsel for Intervening Plaintiffs, including
Kevin W. Mottley of Troutman Sanders LLP (Mottley), to issue several subpoenas directed to the discovery of
any relationship between White and Henry. In January 2008, counsel issued five (5) subpoenas to White and his
various business interests
6
and one (1) subpoena to YAHOO! INC. (the Yahoo! subpoena), White's email
server.
7
Because White and his entities were located in Roanoke, the subpoenas directed to them were issued out
of the Western District of Virginia. Only the Yahoo! Subpoena was issued out of this Court, as Yahoo! is a resident
of Northern Virginia, within this Court's jurisdiction.
On February 11, 2008, White, through counsel, timely moved this Court to quash the subpoenas and for a
protective order. ECF No. 36. That same day, White amended his motion, correcting an attached exhibit. ECF No.
37. Both the original and amended motions addressed all of the subpoenas, including those issued out of the
Western District of Virginia. On February 18, 2008, Intervening Plaintiffs moved to compel White to produce
documents and to appear at a deposition on March 3, 2008.
8
ECF No. 38. White again amended his motion to
quash, on February 27, 2008, this time restricting its scope to the Yahoo! subpoena issued out of this Court.
Because the parties were unable to agree on the scope of the subpoenas, the Court set a hearing for February 28,
2008. On February 22, 2008, the day that the February 28th hearing was noticed, White posted on various internet
websites and blogs the message that initially gave rise to the instant motion for sanctions.
9

C. Procedural History of Intervening Plaintiffs' Motion for Sanctions
On February 27, 2008, Intervening Plaintiffs filed a motion for sanctions and for issuance of a rule to show cause to
White (Motion for Sanctions), alleging that White had attempted to threaten and intimidate Mottley, an officer of
the Court, and his wife. Mot. for Sanctions, ECF No. 44. The Motion for Sanctions was based on an internet
posting White made at approximately 3:55 p.m. on February 22, 2008 to the Vanguard News Network, an internet
forum in which members express anti-Semitic and white supremacist views.
10
The posting revealed Mottley's
personal informationincluding his name, home address, telephone number, and the name of his spouseand
directed readers not to take a series of specific actions against Mottley until after the dispute over the subpoenas
had been resolved, although the posting was arguably designed to invite White's readers to take precisely those
actions described. Counsel for Intervening Plaintiffs first learned of the posting on February 23, 2008, when they
were contacted by an unnamed person associated with Citizens Against Hate, a watchdog organization that
apparently monitors hate crimes and speech. In response to the posting, counsel filed the Motion for Sanctions
and noticed a hearing for the same date as the February 28, 2008 subpoena hearing. The Motion for Sanctions
was referred to the Magistrate Judge pursuant to 28 U.S.C 636(b)(1)(A), Federal Rule of Civil Procedure 72(a),
and Local Rule 72, which collectively provide for the automatic referral to magistrate judges of all non-dispositive
pretrial matters.
*4 The Magistrate Judge conducted the February 28, 2008 hearing on White's second amended motion to
quash.
11
The Court heard limited argument at the hearing regarding the basis for Intervening Plaintiffs' Motion for
Sanctionsincluding an overview of the allegedly threatening posting, the actions Mottley and his firm took in
response to such posting, and the legal grounds asserted for reliefbut the matter was not formally heard
because White had not been given sufficient time to reply to the motion. Out of concern for Mottley's safety, and
the safety of his family, the Court asked White whether he would agree to remove the objectionable posting,
pending the Court's disposition of the Motion for Sanctions. Through counsel, White indicated that he did not
personally control Vanguard News Network, but that he would be willing to ask its operator to remove the
objectionable posting. White personally affirmed his attorney's representations to the Court. Based on White's
representations and on the fact that he had not been afforded an opportunity to respond to the Motion for
Sanctions, the Magistrate Judge did not specifically order White to remove the objectionable posting. However, the
Magistrate Judge repeatedly emphasized to White that his conduct going forward would be of significant interest
and concern to the Court. At the end of the hearing, the Court established a briefing schedule and set the matter
for a telephonic status conference on March 6, 2008.
12
At the status conference, the Magistrate Judge provided for
additional briefing and set an evidentiary hearing on the Motion for Sanctions.
The evidentiary hearing was held on April 2, 2008. Intervening Plaintiffs offered twenty-seven (27) exhibits and the
United States offered an additional four (4) exhibits. White appeared and testified at the hearing and was
questioned about the various exhibits. Mottley also testified, as did a court-appointed computer forensics expert,
Dr. Dardick.
13
Dr. Dardick testified regarding his examination of certain computer equipment surrendered by White
in compliance with the subpoenas issued out of the Western District of Virginia. At the end of the hearing, the
Court took the matter under advisement. The following day, April 3, 2008, the Magistrate Judge conducted a
telephonic status conference at which all parties were directed to order and share the expenses of a transcript from
the April 2, 2008 evidentiary hearing.
On April 4, 2008, the Magistrate Judge held an emergency telephonic status conference with the parties, after
Plaintiff and Intervening Plaintiffs notified the Court of another posting, made on April 3, 2008 at 9:54 a.m., in which
White again published Mottley's personal information, as well as information relating to Lori K. Wagner (Wagner),
lead counsel for the United States.
14
At the April 4, 2008 telephonic status conference, the Magistrate Judge
ordered expedited briefing regarding the significance of White's latest posting to the Court's consideration of
Intervening Plaintiffs' Motion for Sanctions. The Court set another telephonic status conference for April 11, 2008.
At this final status conference, the Magistrate Judge heard argument from the parties regarding the additional
postings.
*5 Before the April 11, 2008 status conference, the Court was advised that the underlying litigation between
Intervening Plaintiffs and Defendants had settled by agreement. The Court confirmed this settlement at the status
conference. On April 14, 2008, the Court was further advised that Plaintiff and Defendants had also settled,
pursuant to a consent decree. However, this latter settlement was subject to approval by the Department of Justice
(DOJ). On April 29, 2008, the District Court entered a consent order dismissing the Intervenor Complaint with
prejudice, based on the compromise settlement agreement executed between Intervening Plaintiffs and
Defendants on April 2, 2008, the same day as the evidentiary hearing before the Magistrate Judge on the Motion
for Sanctions. Consent Order, ECF No. 90. On May 13, 2008, the District Court entered the consent decree filed
by Plaintiff. Consent Decree, ECF No. 95. That same day, based on the entry of both the Consent Order and
Consent Decree, the District Court entered an agreed order dismissing the case with prejudice and retaining
jurisdiction to enforce the settlement agreements. Order, ECF No. 96. Although the underlying litigation had ended,
the Motion for Sanctions remained pending before the Magistrate Judge in accordance with the United States
Supreme Court's decision in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359
(1990), which held that a federal court may consider collateral issues, including a sanctions motion, after the
underlying action has settled. Id.at 396. The Magistrate Judge issued his Opinion and Order denying Intervening
Plaintiffs' Motion for Sanctions on July 25, 2008. Mag. Judge Order, ECF No. 98.
Following an extension of time for filing, Intervening Plaintiffs filed their objections to the Magistrate Judge Order
on August 25, 2008. ECF Nos. 102 & 103. Intervening Plaintiffs included as an attachment to their objections an
additional posting that White had made on August 16, 2008.
15
Intervening Pls.' Br. in Supp. of Objections to Mag.
Judge Order, ECF No. 103, Ex. 1. white did not file objections to the Magistrate Judge Order nor a response to
Intervening Plaintiffs' objections. However, his attorney, Henry Brown (Brown) notified the Court by letter dated
August 28, 2008 that he needed to withdraw from the case for medical reasons. ECF No. 107. Brown filed a
motion to withdraw as counsel on September 11, 2008, which motion the Court granted on October 3, 2008. ECF
Nos. 108 & 110. White did not retain new counsel.
On October 14, 2008, the District Court entered a final order adopting and approving the findings and
recommendations set forth in the Magistrate Judge Order, following a review of the same for clear error. Final
Order, ECF No. 111. Intervening Plaintiffs appealed. The matter remained pending on appeal for approximately
three years, apparently due to White's involvement in two separate criminal prosecutions, as discussed below.
Ultimately, the United States Court of Appeals for the Fourth Circuit vacated the District Court's order and
remanded the case for a de novo review of the Magistrate Judge Order. See Reddick v. White, 456 F. App'x
191, 191 (4th Cir.2011) (per curiam). Following remand, the original District Judge entered a recusal order and the
matter was transferred to the undersigned. Mem. Order 9, ECF No. 158.
D. Procedural History Following Remand
*6 Before the case was reassigned, White filed several pro se motions. Although these motions were related to
Intervening Plaintiffs' Motion for Sanctions, they alleged facts not previously considered by the Court. ECF Nos.
13537. Based on White's pro se motions and on Intervening Plaintiffs' request for oral argument concerning their
objections to the Magistrate Judge Order, this Court decided to set a hearing. ECF No. 169. Because White was in
federal custody on a separate matter, the Court had to determine how White wished to participate in the hearing.
Accordingly, on August 7, 2012, the Court ordered White to advise whether he would appear through retained
counsel, appointed counsel, or personally. Id. In its Order, the Court emphasized that White did not have a
guaranteed right to counsel and that any appointment of counsel would be made in the Court's
discretion. Id. (citing 28 U.S.C. 1915(a)). Additionally, if White wished to continue pro se, the Court ordered that
he show cause why he should not be required to incur the cost of his transportation to the hearing. Id.
Pursuant to the Court's August 7, 2012 Order, White filed a motion for appointment of counsel on August 23, 2012,
which motion the Court granted on October 23, 2012, after locating an attorney who was able and willing to
represent White on a pro bono basis. ECF No. 175. Following the appointment of counsel, the Court set a briefing
schedule on White's pending pro se motions and on Intervening Plaintiffs' objections to the Magistrate Judge
Order. ECF No. 181. Shortly before his response deadline, White filed an unopposed motion for leave to file a
supplemental brief and to extend the briefing schedule, which motion the Court later granted. In accordance with
this modified schedule, briefing on all pending matters concluded on March 7, 2013. White then withdrew his pro
se motions, leaving only the de novo review of the Magistrate Judge Order pending before the Court.
On June 21, 2013, the Court conducted a telephonic status conference in this matter at which it excused the
United States, who had not originally joined in Intervening Plaintiffs' objections to the Magistrate Judge Order, from
further participation in the instant request for sanctions. The Court also set oral argument on Intervening Plaintiffs'
objections. The Court held a hearing on July 17, 2013, at which Intervening Plaintiffs and White, through counsel,
argued extensively regarding the Court's authority to sanction White for his online postings and the potential First
Amendment implications of doing so. At the end of the hearing, the Court took the matter under advisement.
E. White's Criminal Prosecutions
In addition to the protracted procedural history of this matter, reviewed above, White's involvement in two separate
criminal proceedings, and his conduct in relation to those proceedings, has greatly impeded this Court's ability to
resolve Intervening Plaintiffs' objections to the Magistrate Judge Order. First on October 22, 2008, eight days after
the original District Judge issued the Final Order in this matter, White was indicted in the Northern District of Illinois
for soliciting the commission of a violent federal offense in violation of Title 18, United States Code, Section
373. United States v. White, 698 F.3d 1005, 1010 (7th Cir.2012) (per curiam). Less than two months later, on
December 11, 2008, White was named in a seven-count indictment in the Western District of Virginia, which
charged him with threatening and intimidating various individuals, including Intervening Plaintiffs.
16
United States v.
White, 670 F.3d 498, 501 (4th Cir.2012). The Court briefly reviews the overlapping factual and procedural histories
of these prosecutions below.
1. Conduct Charged in the Northern District of Illinois
*7 White's indictment in the Northern District of Illinois stemmed from an Internet post he authored following the
trial and conviction of Matthew Hale, another white supremacist, for criminally soliciting harm to Northern District of
Illinois Judge Joan Lefkow, who had ruled against Hale in a trademark infringement matter.
17
White, 698 F.3d at
100809. White's post,
18
titled, The Juror Who Convicted Matt Hale, criticized the verdict and disclosed the Hale
jury foreperson's (Juror A) personal, identifying information.
19
The post read:
Gay anti-racist [Juror A] was a juror who played a key role in convicting Matt Hale. Born [date], [he/she] lives at
[address] with [his/her] gay black lover and [his/her] cat [name]. [His/Her] phone number is [phone number], cell
phone [phone number], and [his/her] office is [phone number].
Id. at 100910. The post further stated that:
[G]ay Jewish [Juror A] who has a gay black lover and ties to professional anti-racist groups, and who also
personally knew [an individual] killed by Ben Smith, a follower of Hale, was allowed to sit on this jury without
challenge and played a leading role in inciting both the conviction and the harsh sentence that followed.
Id. at 1010. The entry featured a color photograph of Juror A. Id. White uploaded an identical message to
Overthrow.com the next day, after Juror A's employer blocked public access to the Page that contained Juror A's
information and photograph. Id. In this second post, White embedded Juror A's photo in the Overthrow.com server
so that only he could remove it. Id.
The grand jury indicted White for soliciting the commission of a violent federal offense against Juror A, in vi olation
of Title 18, United States Code, Section 373. The indictment charged that White had solicited and otherwise
endeavored to persuade another person to injure Juror A on account of a verdict assented to by Juror A, in
violation of Title 18, United States Code[, Section] 1503. Id. at 1010. White was taken into custody in Roanoke,
Virginia on October 22, 2008 and remained in custody pending trial. Minute Entry, White,No. 1:08cr8511 (N.D.Ill.
Oct. 22, 2008), ECF No. 8 (noting White's arrest); see also Minute Entry, White, No. 1:08cr8511 (N.D.Ill.Dec. 5,
2008), ECF No. 22 (detaining White pending trial); Mandate of USCA, White, No. 0:08cr8511 (N.D.Ill.Dec. 18,
2008), ECF No. 37 (affirming the district court's detention order). On February 10, 2009, the Grand Jury returned a
superseding indictment against White. White, 698 F.3d at 1010. White moved to dismiss the indictment and, on
July 24, 2009, the district court granted his motion, finding that White's internet postings were protected speech
and that the [superseding] indictment failed to sufficiently allege corroborating circumstances' of White's criminal
intent. Id. After dismissing the superseding indictment, the district court ordered White's release. Minute
Entry, White, No. 1:08cr8511 (N.D.Ill. July 24, 2009), ECF No. 108. The Government appealed.
2. Convictions in the Western District of Virginia
*8 The order releasing White from custody in the Northern District of Illinois activated the warrant issued out of the
Western District of Virginia in connection with the indictment returned against White there. Id. White was
transferred to the Western District of Virginia where he was again detained pending trial.
20
As noted above, White
had been indicted in the Western District of Virginia on December 11, 2008 for criminally threatening and
intimidating various individuals. Following a jury trial, White was convicted of Counts One, Three, Five, and Six of
the indictment. White, 670 F.3d at 501.
Count One charged White with transmitting via interstate commerce threats to injure or intimidate Citibank
employee Jennifer Petsche (Petsche). Id. White had been engaged in a dispute with Citibank regarding a debt he
owed them and their reporting of his past due amounts to credit agencies. Following the resolution of that dispute,
White became angered when adverse commentary on his credit report was not immediately removed. Id. at 502.
White called Citibank approximately 50 times over the course of 24 hours, eventually leaving a voicemail for
Petsche, a litigation specialist. Id. White apparently wanted a copy of the letter that Citibank had sent to the credit
reporting agencies. Id. Petsche's supervisor advised her not to respond. Id. The next day, White left Petsche a
message on her home answering machine indicating that he had sent her an email. Id. Petsche reported the call to
Citibank. Id.
The email, which White had sent to several versions of Petsche's email address, included Petsche's full name,
age, birth date, current home address, three of her previous home addresses, her current phone number, and her
husband's full name. The email then stated:
I understand you think you're very tough and you think that by dragging this process out you have created me a lot
of misery; that is an incorrect assessment but I must admit I have run out of patience with you and your smug
attitude. I hope the fact that I've obviously paid someone to find you conveys the seriousness with which I take
your current attitude.
If you resolve this issue quickly and efficiently I can guarantee you will not hear from me again; if you don't, well,
you will be well known to the Citibank customers you are currently in litigation with in [a] very short amount of time.
Again, make my life easy, fax over the letter, and you will not be hearing from me again.
PS: I took the liberty of buying the [Citicard] corporate phone directory and locating information on your outstanding
disputed credit accounts from an internet dealer today, and can probably make you better known to your
customers than the security measures you enact at your company indicate you would like. Consider this, as I'm
sure, being in the collections business and having the attitude about it that you do, that you often make people
upset. Lord knows that drawing too much publicity and making people upset is what Joan Lefkow did.
*9 Id. The email included a hyperlink to a Google search on Joan Lefkow, through which Petsche learned that Joan
Lefkow was a judge whose husband and mother had been murdered.
In addition to his conduct related to Petsche, White was also tried and convicted of Count Three, which charged
him with intimidating Intervening Plaintiffs in an effort to influence, delay, or prevent the[ir] testimony. Id. at 501
(citing 18 U.S.C. 1512(b)(1)). Count Three was based entirely on the packages that White sent to Defendants'
tenants on May 23, 2007. See supra note 4.
White was also convicted of Count Five, which charged him with transmitting threats to injure or intimidate via
interstate commerce to Kathleen Kerr, the Director of Residential Life at the University of Delaware
(Kerr). White, 670 F.3d at 501 & 504. Kerr had helped to develop a diversity training program at the University
of Delaware that attracted national media attention. Id. at 504. After learning of the program, White called Kerr at
her office and spoke with her assistant, Carol Bedgar (Bedgar), to whom he identified himself as Commander Bill
White of the American White Workers' Party. Id. After White asked to speak with Kerr and was informed that she
was not in the office, he said that he knew that she was there because he had just spoken to her husband[,]
Chris. Id. White then recited Kerr's home telephone number and a residential address that Bedgar recognized as
Kerr's father's address. Id. Bedgar asked White if she could take a message and he replied, Yes. Just tell her that
people that think the way she thinks, we hunt down and shoot. Id. Phone records produced at trial revealed that
the call to Kerr's office had been placed from White's home. Id.
In addition to the phone call, White posted an entry to Overthrow.com entitled, University of Delaware's Marxist
Thought Reform, which included Kerr's full name, email address, date of birth, spouse's name, spouse's date of
birth, home address, vacation home address, and telephone numbers. Id. The post instructed readers to go to
their homes, and further stated, We shot Marxists sixty years ago, we can shoot them again. Id. A second post,
titled Smash the University of Delaware, included personal information for both Kerr and the University President
with the instruction, You know what to do. Get to work! Id.
Like Counts One and Five, Count Six also charged White with transmitting via interstate commerce threats to
injure or intimidate, in violation of Title 18, United States Code, Section 875(c). White, 670 F.3d at 501. This Count
addressed White's online postings about Richard Warman (Warman), a Canadian civil rights lawyer who actively
fights hate speech in Canada and specifically targets white supremacist movements.
21
Id. at 505.
White first contacted Warman via personal email in July 2006. White's email lament[ed] the fact that the website of
Alex Linder, a well-known white supremacist had been shut down by the Canadian government and stat[ed] that
Linder was correct when he says the assassination of Canadian Jews and the officials who bow to them would be
an act of patriotism. Id. According to Warman, the email marked the beginning of a campaign of terror that
lasted for two years, during which White repeatedly referred to Warman as a Jew and advocated violence towards
him, even championing his murder. Id. Although the Government introduced evidence of several communications
from 2006 and 2007,
22
only two communications from 2008 formed the basis of Count Six.
*10 First, in February 2008, White posted to the Vanguard News Network a link to an article that described a neo-
Nazi group's firebombing of a Canadian civil rights activist's home. Id. Underneath the link, White wrote, Good.
Now someone do it to Warman.Id. Second, in March 2008, White posted an entry to his own website entitled, Kill
Richard Warman, man behind human rights tribunal's abuses should be executed. Id. The post began:
Richard Warman, the sometimes Jewish, sometimes not, attorney behind the abuses of Canada's Human Rights
Tribunal should be drug [sic] out into the street and shot, after appropriate trial by a revolutionary tribunal of
Canada's white activists. It won't be hard to do, he can be found easily at his home, at [Warman's home address].
White, 670 F.3d at 506. The posting went on to describe Warman's use of Canadian hate speech laws against
white supremacists and compared White's calls for Warman's execution to the advocacy of United States citizens
for the death of Osama Bin Laden. White concluded with an irreconcilable fact: Richard Warman is an enemy, not
just of the white race, but of all humanity, and he must be killed. Find him at home and let him know you agree:
[Warman's home address].
23
Id.
Following his trial and conviction of Counts One, Three, Five, and Six, White moved for a judgment of acquittal.
Regarding Counts One, Five, and Six, he argued that his posts were political hyperbole protected by the First
Amendment and not true threats punishable under 875(c). White, 670 F.3d at 506. Regarding Count Three, he
argued that, to violate 18 U.S.C. 1512(b)(1), intimidation must rise to the level of a true threat, which he claimed
his May 23, 2007 packages to Intervening Plaintiffs did not. Id. at 514. The district court denied White's motion as
to Counts One, Three, and Five, finding more than enough evidence to support the jury's verdicts, but granted his
motion as to Count Six. Id. Both White and the Government appealed. Id.
Based on its post-trial rulings, the district court proceeded to sentencing on Counts One, Three, and Five. On April
14, 2010, White was sentenced to thirty (30) months of imprisonment and thirty (30) months of supervised release
on each count, all to be served concurrently. Judgment, White, No. 7:08cr54JCT (W.D.Va. Apr. 19, 2010), ECF
No. 190. In determining the sentence, the district court declined to apply to Count Three a vulnerable victim
enhancement available under the United States Sentencing Guidelines. The Government appealed.
24

3. Remand and Conviction in the Northern District of Illinois
During White's prosecution in the Western District of Virginia, the Government's appeal from the Northern District
of Illinois's order dismissing the superseding indictment against White remained pending before the Seventh
Circuit. On August 16, 2010, just three months after White was sentenced in the Western District of Virginia, the
Seventh Circuit reversed the district court and remanded the case for further proceedings, holding that the
indictment was facially valid and that White's First Amendment rights were protected by the government's burden
to prove beyond a reasonable doubt that [he] had the requisite intent for criminal solicitation. White, 698 F.3d at
1010 (citing United States v. White, 610 F.3d 956, 961 (7th Cir.2010) (per curiam)).
*11 Following remand, White was tried by an anonymous jury and, on January 5, 2011, the jury returned a guilty
verdict against White on the sole count of the superseding indictment. Minute Entry, White, No. 1:08cr8511
(N.D.Ill. Jan. 5, 2011), ECF No. 148). White moved for entry of a judgment of acquittal, arguing that the evidence
presented at trial was insufficient to convict him of soliciting harm to Juror A. White, 698 F.3d at 1008. White
alternatively moved for a new trial. The district court granted White's motion for judgment of acquittal, concluding
that the evidence had, indeed, been insufficient to support a conviction of criminal solicitation and, accordingly, that
White's speech was protected by the Frist Amendment. Id. The district court conditionally denied White's motion for
a new trial and ordered White released. Id.; accord Minute Entry, White, No. 1:08cr8511 (N.D.Ill. Apr. 19, 2011),
ECF No. 172 (ordering White's release). The Government appealed the judgment of acquittal and White appealed
the conditional denial of his motion for a new trial. White, 698 F.3d at 1008. Because White had served the
sentence imposed by the district court in the Western District of Virginia, he was released from custody in April
2011, at which time he began serving his three-year term of supervised release. See Order on Petition for
Issuance of Warrant, White, No. 7:08cr54JCT (W.D.Va. May 11, 2012), ECF No. 271. Eight months after White's
release, the Fourth Circuit issued its order remanding this matter for a de novo review of the Magistrate Judge
Order and Intervening Plaintiffs' objections thereto. See Reddick, 456 F. App'x at 191.
4. Remand, Supervised Release Violation, and Resentencing in the Western District of Virginia
Shortly after the Fourth Circuit remanded the instant action, it issued a separate opinion affirming the Western
District of Virginia's rulings on White's motion for acquittal and affirming White's convictions on Counts One
(Petsche), Three (Intervening Plaintiffs), and Five (Kerr).
25
Finding that the district court erred in declining to apply
the vulnerable victim enhancement under 3A1.1(b)(1) of the United States Sentencing Guidelines, the Fourth
Circuit vacated White's sentence and remanded the matter for resentencing.
26
Id.at 516. The district court set
White's case for resentencing on May 14, 2012. Notice of Hearing, White, No. 7:08cr54JCT (W.D.Va. Apr. 12,
2012), ECF No. 266. White continued on supervised release pending resentencing. Three days before White was
to be resentenced, the probation officer petitioned the district court for revocation of White's supervised release,
after a home visit to White's residence revealed that all of his personal items were missing and that he had left a
note for his landlord advising that he had moved and had no intention of returning. Order on Petition, White, No.
7:08cr54JCT (W.D.Va. May 11, 2012), ECF No. 271. The district court issued an order on the petition and a
warrant for White's arrest and cancelled the resentencing hearing.
27
Notice of Cancellation, White, No. 7:08cr54
JCT (W.D.Va. May 11, 2012), ECF No. 270; Order on Petition, White, No. 7:08cr54JCT (W.D.Va. May 11, 2012),
ECF No. 271; Arrest Warrant Issued, White, Wo. 7:08cr54JCT (W.D.Va. May 30, 2012), ECF No. 274.
*12 White was arrested in Playa Del Carmen, Mexico on June 8, 2012. See Sentencing Mem. 2, No. 7:08cr54
JCT (W.D.Va. Sept. 6, 2012), ECF No. 303. He remained in custody pending a revocation hearing, which was held
on September 14, 2012. See Minute Entry, White, No. 7:08cr54JCT (W.D.Va. Aug. 7, 2012), ECF No. 286
(reflecting White's initial appearance and remand to custody); Judgment, White, No. 7:08cr54JCT (W.D.Va. Sept.
14, 2012), ECF No. 310. Based on White's admission of the violations charged, the district court revoked his
supervised release and sentenced him to ten (10) months of imprisonment on each of Counts One, Three, and
Five, all to be served concurrently. Judgment, White, No. 7:08cr54JCT (W.D.Va. Sept. 14, 2012), ECF No. 310.
Shortly after revoking his supervised release, the district court resentenced White, applying 3A1.1(b)(1)'s
vulnerable victim enhancement as directed, to a term of thirty-three (33) months imprisonment and thirty-six (36)
months of supervised release on each of Counts One, Three, and Five, all to be served concurrently. Amended
Judgment, White, No. 7:08cr54JCT (W.D.Va. Oct. 25, 2012), ECF No. 316. White was resentenced on the same
day that this Court appointed counsel to represent him in the instant action.See Order, ECF No. 176.
5. Remand and Sentencing in the Northern District of Illinois
On October 26, 2012, three days after white was resentenced in the Western District of Virginia, the Seventh
Circuit reversed the district court's judgment of acquittal as to his conviction in the Northern District of Illinois,
holding that a reasonable jury could have convicted him of criminally soliciting harm to Juror A, in violation of
18 U.S.C. 373. White, 698 F.3d at 1008. Because criminal solicitation is not protected by the First Amendment,
the Seventh Circuit reinstated his conviction. Id. Holding that White was not entitled to a new trial, the Court
remanded the case for sentencing. Id. The Seventh Circuit's opinion was docketed in White's Northern District of
Illinois case on December 12, 2012, the day after this Court established its briefing schedule. Opinion, White, No.
1:08cr8511 (N.D.Ill.Dec. 12, 2012), ECF No. 202; see also Order, ECF No. 181. White was sentenced on Count
One of the superseding indictment on February 20, 2013. Judgment, White, No. 1:08 er8511 (N.D.Ill. Feb. 20,
2013), ECF No. 210. He received a sentence of forty-two (42) months of imprisonment and three (3) years of
supervised release. Id. White remains incarcerated at this time.
F. Postings at Issue
As the above review of White's extensive legal troubles reveals, he frequently employs Internet postings as a
means for expressing his dissatisfaction with the actions, beliefs, or status of others. In such postings, White
regularly discloses the personal, identifying information of his targets, pairing that information wi th disparaging and,
in some cases, criminally threatening or intimidating language. At issue here are a number of communications
authored by White and published or otherwise distributed on the Internet. Of the approximately eleven individual
communications at issue, four are particularly troubling because they include the personal, identifying information
of counsel.
28

*13 White does not dispute that he authored the various postings and, as the Magistrate Judge Order notes, there
is also little question that White had some degree of control over and/or access to the websites on which the posts
appeared. Mag. Judge Order 1920, ECF No. 98. Rather, White has argued only that the content of the postings is
not sanctionable. The relevant postings are reviewed below.
1. The February 22, 2008 Postings
a. ANSWP Yahoo! Groups Posting, February 22, 2008, 12:44 a.m.
The first posting of which the Court is aware, entitled Subpoena Lawsuit Update, appeared on the ANSWP
Yahoo! Groups page on February 22, 2008 at 12:44 a.m. Intervening Pls.' Reply Br. to White's Br. in Opp'n to Mot.
for Sanctions (PreHr'g Reply Br.) Ex. B, ECF No. 673.
29
The post reads:
Comrades:
An update on this subpoena lawsuit.
First, we are certainly going to win. That is good news. This idiot Motley [sic] has barked up the wrong tree and
didn't even take the time to do some basic research into who I was and what my companies are and who owns
them besides me, etc [sic], when he filed [the subpoenas], and so he's hit the tar baby and is going to be brought
to that nasty awakening real son [sic].
Second, the bad news: Its [sic] probably going to cost at least $5000$6000 [sic] to win this. This is bad because
its [sic] another pain [in] the rear I don't need and more money I have to advance the party. Any help with this is
appreciated.
Third, the good news; This guy has screwed up so bad that, if I have anything to say about it, we're going to sue
him and his law firm under a precedent he established for filing subpoenas without cause and recoup all of this
money in the end. Further, if we can, we're going to drag SPLC into this for having collaborated with him, as it is
becoming more and more clear to me that the motivation here is not to actually discover anything about what
happened with Norfolk, but to harass me because this guy doesn't like me calling a nigger a nigger.
This is not the first time that some half wit [sic] attorney with a big name and a shiny law firm has been publicly
embarrassed coming after me, and it won't be the last. However, we will need everyone's support to fight this and
win.
Bill White, Commander
American National Socialist Workers Party
Id. Although this posting preceded the posting that initially gave rise to Intervening Plaintiffs' Motion for Sanctions,
the record suggests that counsel may not have been aware of White's postings on the ANSWP Yahoo! Groups
page until sometime well after White's posting to the Vanguard News Network approximately fourteen hours later.
b. Vanguard News Network Forum Posting, February 22, 2008
White's posting to the Vanguard News Network
30
on February 22, 2008
31
gave rise to the underlying Motion for
Sanctions. Am. NonParty White's Br. in Opp'n to Intervening Pls.' Mot. for Sanctions (PreHr'g Br. in Opp'n) Ex.
A, ECF No. 592. In that posting, White, writing as ANSWP Commander, stated:
*14 Legal Help: Do Not Contact Whiny Section 8 Niggers
Comrades:
In case anyone needed to be told, and I realize all of you do not.
No one associated with the ANSWP is to contact anyone involved in the subpoena litigation against us while we
are involved in defending these subpoenas. After we are done with our legal dispute, they are open game, but
while we are involved in this legal dispute, there is to be nothing done that would cause someone to have valid
reason to further investigate our records.
No one is to contact this attorney, Kevin W[sic] Mottley, partner at Troutman Sander [sic], or his wife, Patricia P[sic]
Mottley. You are not to go by their home at [Mottely's home address], or call them at [Mottley's phone number]. Do
not open credit cards in their name, empty their bank accounts by Internet hack their emails, or otherwise invade
their privacy or misuse their social security numbers. I would tell you which social security numbers not to misuse,
but I cannot publish such information in this forum, but don't misuse them anyway. None of that.
I know they are wasting thousands of dollars of our money, but we can be patient and deal with them l egally.
Further, do not contact any of the Negroes involved in this case. Because I do not know what Negroes are involved
in this case and they are not willing to provide us with a list of them so we can determine whether or not we have
any information relevant to them, I cannot tell you what Negroes not to contact However, I would assume anyone
that seemed involved in the case should be left alone. I have a mailing list that reads Whiny Section 8 Nigger for
several addresses, but I am told that is not their proper name, so I am only mystified as to why they opened mail
that wasn't addressed to them, but I presume we can still contact any Whiny Section 8 Nigger we happen to
encounteras long as they don't seem to be involved in this case.
That is all for now.
Bill White, Commander
American National Socialist Workers Party
Id.
c. ANSWP Yahoo! Groups Posting, February 22, 2008, 3:35 p.m.
At approximately the same time that White posted the above message to the Vanguard News Network, he
published an substantively identical posting to the ANSWP Yahoo! Groups page, under the heading, In Case
Anyone Needed to Be Told: Do Not contact Virginia Beach Niggers ... [.] PreHr'g Reply Br. Ex. E, ECF No. 676.
This posting was time stamped at 3:35 p.m. Id.
d. Vanguard News Network Posting, February 22, 2008, 3:58 p.m.
Less than one hour after White posted Mottley's personal, identifying information to the Vanguard News Network,
one of his followers, identifying himself as John Creagh, posted the following response: Just to be clear, this is
the lawyer you are not supposed to contact, followed by information about Mottley apparently obtained from
Troutman Sanders' firm website, including Mottley's professional contact information, his representative
experience, distinctions, education, admissions, and memberships. PreHr'g Br. in Opp'n Ex. A, ECF No. 592.
The response post did not include any personal, identifying information but it did refer to the underlying litigation,
including what appears to be Troutman Sanders' diversity policy under the statement, He's probably taking this
case to show he's on board with the firm's diversity policy. Id. It does not appear that White was involved in
authoring this posting, nor that he responded to it in any way.
2. The February 28, 2008 Emails
a. ANSWP General Membership Email, Copied to Counsel, February 28, 2008, 6:55 p.m.
*15 As discussed above, the Magistrate Judge conducted a hearing on February 28, 2008 regarding the subpoena
dispute between White and Intervening Plaintiffs. At that hearing, the Court received limited argument on
Intervening Plaintiffs' Motion for Sanctions, which was initially based only on White's February 22, 2008 posting to
the Vanguard News Network. Hr'g Tr. 422, 4575, Feb. 28, 2008, ECF No. 60. During argument, counsel for
Intervening Plaintiffs suggested that, [White] can post something indicating he now understands the rule of law
and that he denounces and rejects the suggestions that people are open game once litigation ceases, reiterating,
He can do that. Why doesn't he? What's going on? Hr'g Tr. 6566, Feb. 28, 2008. After the February 28, 2008
hearing, White sent an email to his counsel and to Mottley entitled, Norfolk Case Update, which included the text
of an email [s]ent today to our general membership, in case there was any doubt as to my intentions or my
instructions regarding Mr. Mottley and company. Intervening Pls.' Supplemental Br. in Supp. of Mot. for Sanctions
(PreHr'g Supplemental Br.) Ex. A, ECF No. 552. The email was approximately four pages long and stated:
Comrades:
I just returned from Norfolk, Virginia, where a hearing was held today on some of the subpoenas that have been
issued against us and our records. The hearing was essentially two hours of delusional ranting, paranoid people
shooting at us, and if we hadn't wiped the floor with them, it would have been very irritating. Some new things have
developed, though, and before I get into a detailed discussion, I want to make something clear:
The American National Socialist Workers Party, LLC's Article of Organization prohibit any member from engaging
in criminal activity, which includes interfering with any party to any lawsuit in which we are engaged. Further, they
prohibit individuals with a number of personal defects associated with criminal behavior from joining, for the
purpose of making sure our members are not individuals inclined to cross over some lines. These rules have
always been strictly enforced, and we not only reject about a third of the membership applications we receive for
this reason, but have suspended members and leaders in the past when they have not appropriately handled legal
problems they have encountered. No member of the American National Socialist Workers Party, LLC, has ever
committed a crime in furtherance of our political goals and it is my sincere hope no member ever will.
Because all of you know this, I can generally remind you of it with humor; however, since my humor falls dead on
the enemies of humanity that have gathered against us, I thought I would restate the position of the ANSWP in the
clearest words possible.
That said, back to my report on today's events:
Today's morning in court was more like a stay in a mental institution than a proper court hearing. I've never sat in a
hearing in which there was more rhetoric and speech making and less evidence presented, and I hope to never sit
through such a thing again. Apparently, a member of the well known [sic] criminal organization Citizens Against
Hate sent a packet of information to Troutman Sanders just before we entered the hearing, and, as a result of
these clearly bogus lies from people Troutman Sanders should know are convicted felons, this bogus Motion for
Criminal Sanctions was entered, leading to attorneys jumping up and down and pounding the pulpit to demand my
immediate arrest. As I am sitting here writing this, it is safe for you to assume this demand was not granted.
*16 ...
I don't pretend to know all the details; I came into the hearing almost an hour late after getting caught in traffic in
Richmond and trying to find parking in Norfolk. I estimated the drive at four and a half hours but it turned into five
and a half. As I walked in, some old woman from the Department of Justice was shouting about how Mr [sic]
White's failure to appear for this hearing today is just further evidence of his intent to commit imminent criminal
acts against Mr [sic] Mottley or something to that effect. As best I can gather, Citizens Against Hate told Troutman
Sanders that I was planning to assassinate the Mottley family after the hearing today, and, as a result, the FBI and
the police had provided Mottley and the attorneys with round the clock bodyguards. Given that this is not the first
time that Citizens Against Hate has knowingly made a false report of a crime in order to play a prank on a white
activist, you would think the DOJ would take some action against them; however, as we all know, claiming to be an
anti-racist is a good way to get immunity from prosecution.
...
With that summary, I describe today's hearing as ranting because this was not the kind of rational discussion of the
law that usually occurs in a courtroom, but a lot of irrational accusations coming from people who were clearly both
terrified and completely ignorant of what they were talking about. The six or seven attorneys on the other side first
ranted about how I was involved in a conspiracy with this James Henry, and then said that the fact I started my
letters with I do not know James Henry was proof that I did know James Henry, because, obviously, why would
I say that unless I was deliberately trying to mislead a future court investigation into me?
Yeah, that was the kind of logic we faced all day. I don't know if the judge was buying it or not, but he was
excessively indulgent. It just gave me a headache.
For instance, I mentioned our mailing list of the tenants. Well, we sent thirty pieces of mail, so of course we had a
list. The other attorneys were ranting about how did he get such a list? and James Henry must have given it to
him, [sic] when, of course, we all know that I just went to the Virginia Beach GIS, looked up the apartments, then
ran them through WhitePages.com. Knowing there were five buildings and thirty units, or six buildings and five
units, or whatever there was, it was easy to figure out they were address # 1, apt # 1, 2, 3, 4, and 5, or whatever. I
don't think that's a terrible mystery, but paranoia, fear and lunacy prevailed and all sorts of conspiracy theories that
would be denounced as right wing paranoia if they weren't focused on a racial activist were permitted to be
argued before the Court.
Similarly, there was all this ranting about how did he discover the address and phone number of Mr [sic] Mottley,
and the name of his spouse? and asserted that the mere fact I knew where they lived was evidence I had spent all
this time following them, et cetera. Of course, Mr [sic] Mottley is listed in the phone book, and it took all of ten
seconds to confirm the information about him that had already started to hit the Anonymous messageboards [sic],
but this big professional fancy law firm somehow overlooked all of this as well.
*17 They then went into a lot of ranting about how I had previously told no one to mess with them during the trial,
but said afterwards they were fair game. [sic] Well, of course, all I meant by that is that once they are out of my
hair, I don't care what happens to them one way or the other. That doesn't mean I want anything particular to
happen to them; in fact, I actively hope that this concludes with them being sued into oblivion, paying me a large
judgment, and never having anything happen to them upon which they hang any legitimate complaint. It does
mean that I only care about them as long as they have some implication on me and only want to be done with
them without any third (really, I guess, fourth) parties getting any bright ideas and trying to help. [sic]
As most of you know, there is a large presence on the internet known as Anonymous. My strong suspicion is that
Troutman Sanders has never read http:// nya.7chan.org/b/, but gathered around websites such as nimbusters.org,
7chan.org, 4chan.org, 420chan.org and so on, Anonymous freely breaks the laws of the United States, trading all
sorts of illegal pornography, photos and videos of crimes, and deliberately targeting people with abuse ranging
from mean pranks to serious crimes. Since discovering this, I have opposed it, filed injunctions against it, and seen
the federal courts not only powerless to stop it, but actively protect it, when it has been involved in harassing white
activists. I have also seen this federal court protection of Anonymous criminality lead many activists, both racial
and anti-racist, to adopt the Anonymous tactic in targeting perceived enemies.
As Mottley has gotten nastier and nastier, and sunk deeper into this delusionary alternate reality he's created
around this case, I've seen his efforts could quickly balloon into the kind of nastiness that draws an Anonymous
response. As we all know, from the Anonymous perspective, someone becomes open game the moment they
stick their head up; a lot of people don't even stick their head up, but become targets just at random as people
browse the web. I remember what happened to Joan Lefkow, for instance, and know what the segment of
Anonymous which thinks its capable of helping is capable of doing.
Particularly, I could see agitated ANSWP fans who are not members and not under my control in any way deciding
to help, [sic] as they have when they have mailed nooses to black leaders or kidnapped members of Jewish
groups, going after this attorney with some Anonymous tactics that would do nothing but hurt our position. In
response to that possibility, I posted my somewhat humorous and mostly serious admonition not to harass him. I
think anyone familiar with my writings could understand what I meant when I made that post. I cannot imagine
anyone interpreted it as a command to kill him after the trial, kill him after a specific hearing, or commit any
specific crime against him. But, based upon apparent other false information he and his law firm has [sic] received
from these communist criminals, he has decided that I was imminently planning to assault him this afternoon, and
made that case to the courtthus the urgent call for my immediate arrest. [sic] He and the other attorneys also
stated that they are so terrified that they are considering withdrawing from the case and leaving their clients
hanging. They weren't joking either. Many of them physically trembled in court. It was just sad and sickening.
*18 So I don't know what to do with these fools. I've now got another week of BS hearings and will probably
eventually have to fight off a Show Cause order on contempt because of these loonie's [sic] angry ranting. There
was a lot of talk in the court today about the benefits of democracy, [sic] but it strikes me that any system that
allows irrational people to come forward with no evidence and harass someone because of right and moral political
views that they hold is a system that we would be better off without. There was a time when the United States
objected to Nuremburg-style show trials; what I suffered through today looked a lot like one. I guess the one
advantage of our system is that generally judges don't buy these kinds of lies, however, judges who understand
the politically motivated verdict are increasingly common, and who knows how things will go.
So, we have hearing[s] scheduled March 3 and March 6. I've been asked to clarify our position, and our position
remains as it was written in the ANSWP Articles of Organization two years agoall members are prohibited from
committing any crime against any person at any time, and will be expelled from the Party if they do so.
Bill White, Commander
American National Socialist Workers Party
Id. The lengthy email did not contain personal, identifying information for Mottley or anyone else associated with
the underlying litigation.
b. Email to Counsel and Mottley, February 28, 2008, 8:35 p.m.
After forwarding the above email to his own counsel and to Mottley, White authored a second email to them,
entitled, Thread Removed From Vanguard News Network, and stating that, [t]he objectionable thread on
Vanguard News Network was removed today. Intervening Pls.' Br. in Supp. of Objections to Mag. Judge Order
(PostRemand Br. in Supp. of Obj.) J.A. at 345, ECF No. 1525. At the hearing that morning, the Court had
inquired whether the posting could be removed pending the resolution of Intervening Plaintiffs' Motion for
Sanctions. Hr'g Tr. 69, Feb. 28, 2008. White had indicated through counsel that, although he did not exercise
direct control over the Vanguard News Network, he was acquainted with the site's operator and could potentially
arrange for the removal of his previous posting. Id. at 7071. White's second direct email to his attorney and to
Mottley on February 28, 2008 apparently confirmed that he had succeeded in having the Vanguard News Network
posting removed. The email did not disclose, as the Magistrate Judge Order notes, that the posting remained
available on ANSWP's Yahoo! Groups page, a fact apparently unknown to counsel and the Court.
3. The April 2008 Postings to Overthrow.com
After the parties had fully briefed Intervening Plaintiffs' Motion for Sanctions, the Magistrate Judge held an
evidentiary hearing on the motion at 10:00 a.m. on April 2, 2008. Following the hearing, White authored postings to
his own Internet blog, Overthrow.com, in which he expressed his views on the hearing and, more expansively, on
the entire subpoena litigation. In the majority of these postings, White mentioned Mottley and the law firm of
Troutman Sanders by name, but he did not provide any personal, identifying information. However, White did again
publish such information in at least two postings of which the Court is aware, one made the day after the hearing
and another made on April 9, 2008, while expedited briefing concerning the impact of the April 3, 2008 post was
ongoing.
a. Overthrow.com Posting, April 3, 2008, 9:54 a.m.
*19 The day after the April 2, 2008 hearing, White authored a posting entitled, Troutman Sanders Attorney Kevin
Mottley, and subtitled, For Those Who Want To Talk To HimNicely.
32
The post was styled as a Commentary
and began: I have been thinking about this Troutman Sanders case, and I am tired of pretending that there is
something wrong with telling people to contact and speak to someone about public statements they have made.
Intervening Pls.' Supplemental Br. in Supp. of Mot. for Sanctions (PostHr'g Supplemental Br. in Supp.) Ex. A,
ECF No. 762. The post went on to describe Mottley as the ridiculous, cowardly, shaking-trembly [sic] attorney
who basically cried on the stand yesterday when describing how terrified and fearful he was that I suggested
people not talk to him about this case. Id. Apparently referring to Mottley's testimony at the April 2, 2008 hearing,
White wrote: He asked me to reverse this statement, which I will do now. Id. The post continued, referring to
Mottley and Wagner and including what White believed to be accurate contact information for both:
33

Kevin Mottley, the attorney representing the niggers in Virginia Beach lives at [Mottley's home address] in
Richmond, Virginia [zip code] and his home phone number is [Mottley's home phone number]. Lori Wagner, the
lead attorney for the Department of Justice, lives at [physical address] Richmond, Virginia [zip code].
Write to them. Call them. Tell them what you think. Do not threaten them. Do not harass them. Do not commit
crimes against them, at this point in time or any other point in time. But, legally, contact them and share with them
your point of view.
You have a right to contact people who are in activities that draw public attention. They do not have a right to
conduct their activities in secret or to hide from you. And if they do something irrational, like hire police bodyguards
to protect them from threats that exist wholly in their imagination, we are in now [sic] way responsible for that.
I am under no order from the court in Virginia Beach or any other Court not to publish their address or phone
number. The court has repeatedly had the opportunity to issue such an order and has declined to do so. They
declined to do so at the first hearing, and they declined to do so at the hearing yesterday. I am no longer going to
pretend that there is some jeopardy against me for doing activities that are completely legal.
The court in Virginia Beach has the authority, under the All Writs Act, to order me not to publish information that is
disrupting the course of a trial or prejudicing one party or another. It does not have the authority to punish me ex
post facto for material that is not criminal and which is not aimed at disrupting the flow of justice. It has declined, so
far, to prevent me from publishing this information, and, until it changes its mind, I am going to obey the law and let
all of our readers know exactly who these people are.
*20 Id. The posting then provided a link to a news article describing the April 2, 2008 hearing, under the phrase
[y]ou can read about the case here. Id.
b. Overthrow.com Posting, April 9, 2008, 8:26 a.m.
As discussed above, the Court conducted an emergency telephonic status conference on April 4, 2008 in response
to White's April 3, 2008 posting to Overthrow.com. Following the status conference, the Magistrate Judge
established an expedited briefing schedule concerning the impact of White's subsequent posting on the pending
Motion for Sanctions. Order 2, ECF No. 74. Per the Court's Order, briefing was to conclude on April 10, 2008 and a
second telephonic status conference was to take place on April 11, 2008. Id.
As ordered, the United States filed a supplemental brief on April 8, 2008. Supplemental Submission in Supp. of
Mot. for Sanctions, ECF No. 75. In that brief, the United States stated that Mr. White ha[d] incorrectly listed the
residential address for counsel of the United States. Id. at 2 n. 1. The next day, before White's counsel filed his
response brief,
34
White published a corrected version of the April 3, 2008 posting, in which he provided an updated
home address for Wagner.
35
This posting was apparently otherwise identical to the April 3, 2008 post.
4. Overthrow.com Posting, August 16, 2008, 9:20 a.m.
In addition to the postings reviewed above, which were the only communications considered by the Magistrate
Judge, White authored a final post less than one month after the Magistrate Judge issued his Opinion and Order
denying Intervening Plaintiffs' Motion for Sanctions.
36
in this final post, which was made to Overthrow.com on the
morning of August 16, 2008, White stated:
I saw the movie Funny Games the other night, and it occurred to me:
Civil Rights Attorney Kevin Mottley of Troutman Sanders and his wife would star perfectly in the role of the family.
[sic]
Anyone think I'm off base on that?
Intervening Pls.' Corrected Br. in Supp. of Objections to Mag. Judge Order (Br. in Supp. of Obj.) Ex. A, ECF No.
1042. The post included the following tags: contempt, funny games, and movie review. Id. According to the
plot summary attached to Intervening Plaintiffs' objections to the Magistrate Judge Order, Funny Games tells the
story of a middle-class family [who] submits both physically and mentally to the torture, violence, and death foisted
upon them by two young, unexpected white-gloved visitors at their vacation retreat near the lake. Id. Ex. B, ECF
No. 1043. Significantly, this posting did not include any personal, identifying contact information for Mottley or his
wife.
G. Evidence Presented at April 2, 2008 Hearing
In addition to the postings at issue, the Court has before it the evidence presented to the Magistrate Judge at the
evidentiary hearing held on April 2, 2008. At the hearing, Intervening Plaintiffs introduced twenty-seven
documentary exhibits, including White's May 23, 2007 letter, related documents, and various Internet postings and
emails authored by White. The United States introduced four additional exhibits, including Dr. Dardick's reports
and a document recovered from White's computer that listed the names, addresses, and phone numbers of the
attorneys involved in the underlying litigation. As noted above, White, Dr. Dardick, and Mottley testified at the
hearing. The Court reviews the relevant exhibits and testimony below.
1. Summary of Exhibits Offered
*21 Intervening Plaintiffs offered the majority of the exhibits entered at the April 2, 2008 hearing. Many of these
were copies of White's other writings, which Intervening Plaintiffs alleged show his tendency toward violent
behavior and his practice of endeavoring to incite or instigate violence through written communications that 1)
openly espouse his anti-African American and anti-Jewish ideologies, and 2) forcefully advocate in favor of white
supremacy, segregation, and the elimination of those whom White opposes.
37
Some exhibits addressed White's
May 23, 2007 packages to Intervening Plaintiffs, as well as the resulting media coverage. PostRemand Br. in
Supp. of Obj. J.A. 35857, 37177, ECF No. 1526. These posts, which were authored in the week immediately
following White's mailing of the packages, included several derogatory descriptions of Intervening Plaintiffs and
emphasized White's view that his conduct toward them had been perfectly legal.
38
Id.
In addition to the commentary regarding the underlying litigation, Intervening Plaintiffs offered other examples of
White's allegedly inciting writings, including comments endorsing the murder of white people opposed to racism,
postings hypothesizing about the effect on the 2008 presidential election were then-candidate Barack Obama to be
assassinated, id. at 400, summaries of ANSWP's white supremacist purpose and goals, id. at 40607, and the
2008 postings calling for Richard Warman's murder that formed the basis and context for White's prosecution in
the Western District of Virginia, id. at 40917.
One particularly deplorable posting detailed White's exhibitionistic and self-serving view of his physical altercation
with an African American crack dealer. Id. at 38490. White authored the post on February 20, 2008, after he
was acquitted of the resulting assault charge. Id. at 384. In it, White lamented the state of his community and what
he viewed as a failure to act on the part of law enforcement. Justifying his actions, White stated, I have
additionally become convinced that the murder of wicked men, when conducted in a selfless manner, is a path to
transcendence and to God. Id. at 386. White went on to express the euphoria he felt as he choked the other
man, which he described as a peace greater than any sensation I have ever felt. Id. at 387. He continued: It was
as if I was bathed in light. I felt closer to God as I killed this wicked man, and it is a sensation I hope to be able to
feel again. Id.White recommend[ed] to all reading this that they consider taking a wicked mana crack dealer, a
pimp, an NAACP official defending black crime, or perhaps a newspaper writer supporting themand killing them
with your bare hands as a test of what I have to say. Id. at 388. He emphasized his belief that:
[T]he murder of the wicked, including all of those in positions of power who support the commission of wickedness
and support the modern world that creates such conditions of wickedness, is a positive duty of every National
Socialist, just as the protection and the defense of the lives of the good, the innocent, and the defenseless among
them is a burden we are compelled to bear.
*22 Id. White then declared: God can be found through the murder of wicked men, and being killed while
murdering wicked men is a path to heaven. Id. at 388.
In another posting, dated November 20, 2007, White reproduced, under the words Fuck off, a copy of an
interview request that he had received from Brentin Mock of the Southern Poverty Law Center (Mock). Post
Remand Br. in Supp. of Obj. J.A. 456, ECF No. 1527. In a comment to this post, White disclosed Mock's
personal, identifying information, including his name, age, date of birth, home address, and phone number, with a
notation that Mock's home phone was connected. Id. at 457. Immediately preceding Mock's information was the
statement, I'll have some people drop by. Id. The comment continued, And you have a relative down here in
Roanoke, followed by the name, address, and phone number of a woman whose last name was also
Mock. Id. Concerning Mock's apparent relation, White stated, Interesting. Are you going to be obnoxious enough
I need to look deeper? Id. When one of White's followers, writing under the name Frank Blanc, questioned
White's inclusion of the information concerning Mock's relative, he responded:
My view: Total war. Kill them, kill their families, kill everyone they know.
BindTortureKill.
If you can't tell, I've been in a bad mood lately. Some assholes owe me $90,000 and are dragging their feet paying.
I may be getting ready to do some serious killingthe only question is what direction I go.
-I need a smiley with a machine gun right about here. Id. at 462. After Mock apparently reiterated his request for an
interview, White again commented: Nigger doesn't understand what fuck off means. Id. At 463. After reprinting
Mock's response, White continued, Someone should have told himthe only way to really piss me off is to be a
pissant [sic] nobody and to talk to me like your life has value. Just doing that makes me want to hunt his black ass
down. Id. at 463.
Another exhibit, the May 2007 edition of the National Socialist magazine that White had included in the packages
he sent to Intervening Plaintiffs, featured an editorial lambasting the editor of the Roanoke Times, Chris Trejbal,
who White claimed had posted the personal information of 135,000 Virginia concealed carry [sic] permit holders,
pairing it with a column comparing them to sex offenders. J.A. 348. In the editorial, White boasted that, in
response:
[W]e mass mailed his neighbors to let them know of the peculiar feelings this 37year old unmarried man has for
homosexuals, along with our February issue on Gay Jews. Both were featured on the evening news. We also
posted his home address and phone number online. Bomb threats followed, and his house had to be evacuated.
39

Id. The editorial continues, summarizing a press statement that ANSWP had apparently released and bragging,
As of the day we went to press, that statement was the number one Google result for anyone checking on
Trejbal's name. Id.
2. Summary of Testimony
*23 As noted above, White, Dr. Dardick, and Mottley testified at the April 2, 2008 hearing. White testified regarding
the exhibits and his intentions in making the relevant postings. Dr. Dardick then testified as to his review of White' s
computers. Finally, Mottley testified regarding the objectionable postings and his reaction to those postings.
During his testimony, White admitted to authoring and posting various exhibits, as the parties had stipulated at the
outset of the hearing. Regarding the postings at issue in this matter, White testified that they were not intended to
be threatening to Mottley and that they were never intended to be read or received by Mottley. White claimed that
the postings were meant to be humorous and satirical, as he maintained was true of all of his writings. He also
suggested that the postings were designed to protect Mottley, in that they advised White's followers, who White
characterized as difficult to control, not to engage in any acts of harassment or violence, at least not until the
litigation had ended. Regarding the emails he sent directly to counsel on February 28, 2008, White testified that he
sent the first in response to what he perceived as a request from Intervening Plaintiffs' counsel that he contact his
supporters and clarify his position, and that he sent the second in response to the Court and counsels' concerns
regarding the continued availability of the February 22, 2008 Vanguard News Network posting during the Court's
consideration of Intervening Plaintiffs' Motion for Sanctions.
White's explanations, of both the instant writings and his style of communication generally, were overwhelmingly
self-serving and, at times, seemed to mock the very serious concerns raised by the underlying Motion for
Sanctions. For example, in addressing the potential that his writings could be misinterpreted if read out of context,
White testified, I think a person familiar with the poison of modernity might misinterpret what I had to say. I don't
know that they would necessarily need my [other] writings. But if they were familiar with my writings, they would
see things my way. Hr'g Tr. 70, Apr. 2, 2008. When asked by Intervening Plaintiffs' counsel about his failure to
remove the February 22, 2008 Yahoo! Group's posting after the Court expressed concerns at the February 28,
2008 hearing about the identical posting to the Vanguard News Network, White testified that he did not remove the
Yahoo! Groups posting [b]ecause it was [a] pointless endeavor to begin with, and it was just done because you
were just looking at that Web site, and it was just done to make you feel happier than you felt before. The actual
substance of the act was pointless. Id. at 83.
Dr. Dardick testified as an expert in the field of forensic analysis of computer information. Id. at 9192. His
testimony focused on his recovery and examination of three computers pursuant to the subpoenas issued to White
and his various entities out of the Western District of Virginia. Dr. Dardick explained the process of forensic
imaging that he conducted on White's computers and his search of the resulting images for relevant keywords,
including the names of the attorneys involved in the underlying litigation. Id. at 9496. Dr. Dardick testified that
when he searched for Mottley, the term Kevin Mottleynot Mottley by itself but Kevin Mottley combined appeared
82 times.
40
Id. at 100. When he searched Mottley, alone, that number increased to 454.
41
Id. On cross-
examination, Dr. Dardick noted that the results have been inflated to some degree by redundancy or repetitious
documents. Id. at 113. Dr. Dardick testified that he was able to locate at least one document containing all of the
relevant attorney names, entitled attorneys-vabeach.txt. Hr'g Tr. 105, Apr. 2, 2008. Based on the computer's time
stamp, Dr. Dardick determined that this document was created at 3:29 p.m. on February 29, 2008, the day after
the first hearing before the Magistrate Judge in this matter.
42

*24 Following a brief recess, Mottley testified regarding his decision to issue subpoenas to White and his various
organizations, based on White's May 23, 2007 packages to Intervening Plaintiffs. When White moved to quash the
subpoenas, Mottley stated that he responded, on February 19, 2008, three days before White's initial posting, by
advising the Court not only of White's offensive and intimidating packages, but also of the boasting and bragging
that White had engaged in on the Internet, specifically in his postings to Overthrow.com. Id. at 12223. Mottley
apparently attached some of these postings to his brief.
43

Mottley testified that he first learned of the objectionable February 22, 2008 posting to the Vanguard News Network
when he received an email from a woman identifying herself as a member of Citizens Against Hate, a self-
proclaimed watchdog organization that monitors and opposes hate crimes. Mottley further testified that, upon
learning of the posting, he and his law firm took a number of steps designed to ensure his safety, including
notifying local law enforcement (which resulted in increased safety patrols in his neighborhood) and hiring private
security guards to surveil his home. Mottley also immediately filed the instant Motion for Sanctions.
Mottley explained that he perceived th[e] posting ... to be a threat to [his] safety, not only [his] physical safety ...
but also the security of [his] financial accounts, [his] home, and most importantly, of [his] wife, who was not
involved in the underlying case. Id. at 12627. Mottley stated that he and his family suffered feelings of fear and
intimidation as a result of White's postings
44
and that the postings caused him to question his continued
representation of Intervening Plaintiffs in the underlying litigation. Mottley further testified that he suspended his
work on the case upon learning of White's posting. Mottley estimated that he had spent approximately 80100
hours responding to the posting (including his work on the Motion for Sanctions) between the time he became
aware of it and the April 2, 2008 hearing.
45
Mottley stated that he would have spent approximately half of this time
on the underlying litigation, had he not been diverted by White's posting.
In addition to his knowledge of and reaction to the initial posting, Mottley testified that he had received two phone
calls to his home telephone number in the early morning hours of March 1, 2008. Mottley stated that the male
caller, who did not identify himself, asked to speak with Mottley's wife by the name included in White's posting, a
name Mottley said would not likely have been used by anyone familiar with their family.
46
Mottley testified that his
caller identification system had registered both calls as coming from unknown name, unknown number. Hr'g Tr.
137, Apr. 2, 2008. Mottley stated that he had dialed the *69 callback feature on his telephone to determine who
had placed the calls and that this feature had also failed to reveal the caller's identifying information. Id. at 138. No
other evidence concerning the caller's identity was presented at the hearing. Finally, Mottley testified about the two
emails he had received directly from White on February 28, 2008, both of which had also been copied to White's
counsel and had addressed issues raised at the hearing earlier that day.
*25 No evidence was presented at the lengthy April 2, 2008 hearing suggesting that White's conduct with respect
to Mottley, or the resulting Motion for Sanctions, disrupted or otherwise delayed the underlying dispute, despite
Mottley's testimony that he suspended his work on the matter immediately following the initial
posting.
47
Additionally, there was no evidence of any direct communication from White to Mottley beyond the two
emails following the February 28, 2008 hearing, sent to both Mottley and White's counsel.
H. Question Presented
As the above review makes clear, prior to his involvement in the criminal proceedings before the Northern District
of Illinois and the Western District of Virginia, White frequently commented on the underlying litigation, the
subpoenas issued to him during the course of that action, and his views concerning counsel (in particular, Mottley)
and the Court. The question before the Court on this de novoreview of the Magistrate Judge Order and Intervening
Plaintiffs' objections thereto is whether White's Internet communications should subject him to sanctions under the
Court's inherent powers.
III. LEGAL STANDARD
The scope of a magistrate judge's authority is defined by statute, 28 U.S.C. 636, and includes the ability to hear
and determine two types of referrals from the district court. First, Section 636(b)(1)(A) provides that a district judge
may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except for
eight enumerated dispositive motions, such as motions to dismiss and motions for summary judgment. 28 U.S.C.
636(b)(1)(A). When a magistrate judge considers a pretrial matter pursuant to 636(b)(1)(A), the district court
reviews the magistrate judge's order only to determine if it is clearly erroneous or contrary to law.Id. For those
dispositive motions excepted from subsection (A), a district court may designate a magistrate judge to conduct
hearings, including evidentiary hearings, and to submit ... proposed findings of fact and recommendations.... 28
U.S.C. 636(b)(1)(B). [A]ny party may serve and file written objections to such proposed findings and
recommendations within fourteen days after service. Id. If objection is made, the district court is required to
review de novo those portions of the report or specified proposed findings or recommendations to which objection
is made. Id. The Supreme Court has summarized the authority provided for in 636(b)(1) as follows:
nondispositive pretrial matters are governed by 636(b)(1)(A), while dispositive matters are governed by
636(b(1)(B). See Reddick, 456 F. App'x at 193 (citing Gomez v. United States, 490 U.S. 858, 87374, 109 S.Ct.
2237, 104 L.Ed.2d 923 (1989)).
Federal Rule of Civil Procedure 72 implements the provisions of 636 and, accordingly, provides for the referral of
both nondispositive and dispositive matters to magistrate judges. Fed.R.Civ.P. 72. Concerning the former, Rule
72(a) permits the referral of a pretrial matter not dispositive of a party's claim or defense ... to a magistrate judge
to hear and decide. Fed.R.Civ.P. 72(a). The magistrate judge must promptly conduct the required proceedings
and, when appropriate, issue a written order stating the decision. Id. Parties are permitted to object to the
magistrate judge's decision within fourteen days and, where such objection is made, [t]he district judge in the case
must consider timely objections and modify or set aside any part of the order that is clearly erroneous or contrary
to law. Id. Rule 72(b) provides for the referral of dispositive motions. Concerning these matters, the magistrate
judge is directed to promptly conduct the required proceedings and to make [a] record ... of all evidentiary
proceedings.Fed.R.Civ.P. 72(b)(1). Instead of issuing an order stating his decision, [t]he magistrate judge must
enter a recommended disposition, including, if appropriate, proposed findings of fact. Id. If a party timely objects to
any proposed finding or recommendation, [t]he district judge must determine de novo any part of the magistrate
judge's disposition that has been properly objected to. Fed.R.Civ.P. 72(b)(3) (emphasis added). [I]n the absence
of a timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself
that there is no clear error on the face of the record in order to accept the recommendation. Diamond v. Colonial
Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir.2005) (quoting Fed.R.Civ.P. 72 advisory committee's note)
(emphasis added).
*26 The underlying Motion for Sanctions was originally referred to the Magistrate Judge as a nondispositive pretrial
matter pursuant to 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). In accordance with these provisions,
the Magistrate Judge issued an opinion and order denying the Motion for Sanctions and, based on Intervening
Plaintiffs' objections, the original district court judge reviewed the opinion and order for clear error. Finding none,
the district court affirmed. On appeal, the Fourth Circuit held that [a] motion for sanctions under the district court's
inherent power is not a pretrial matter under 636[ (b)(1)(A) ],
48
because magistrate judges do not have inherent
Article III powers, but instead possess only those powers vested in them by Congress. Reddick, 456 F. App'x at
193. The Fourth Circuit continued: Assuming a district court can delegate its inherent power under 636(b)'s
additional duties' clause, de novo review of the exercise of those powers is required. Id. (citing United States v.
Osborne, 345 F.3d 281, 28990 (4th Cir.2003)). Because the Magistrate Judge Order was issued after the
underlying litigation had concluded, the Fourth Circuit also held that it was dispositive of a claim, that is, [the]
claim against White. Id. For these reasons, the appellate court vacated the district court's final order and
remanded the matter for a de novo review in accordance with the requirements set forth in 636(b)(1)(B). It is to
this review that the Court now turns.
IV. DISCUSSION
A. Intervening Plaintiffs' Motion for Sanctions and Other Relief
In the instant Motion for Sanctions, Intervening Plaintiffs argued that White should be sanctioned or similarly
punished under a number of theories for his online conduct during the course of the underlying action. Mot. for
Sanctions 34, ECF No. 44. First, pursuant to the Court's inherent powers, as described in Chambers v.
MASCO, 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), and its civil contempt powers, Intervening Plaintiffs
prayed for an order assessing sanctions, including attorneys' fees and costs, against White. Id. Under these same
theories, Intervening Plaintiffs also requested an order enjoining White, ANSWP, and any of its members from
publishing the personal information of Intervening Plaintiffs, their counsel, or their family members and from
making any statement, or engaging in any conduct, for the purpose of intimidating or harassing the same. Id. at 4.
Finally, Intervening Plaintiffs' asked the Court to issue an order to show cause, pursuant to the Court's inherent
criminal contempt powers underInternational Union v. Bagwell, 512 U.S. 821, 82634, 114 S.Ct. 2552, 129
L.Ed.2d 642 (1994), and Federal Rule of Criminal Procedure 42, compelling White to explain why he should not be
held in criminal contempt for his online conduct. Id.
During the February 28, 2008 subpoena hearing, at which the Magistrate Judge heard limited argument regarding
the Motion for Sanctions, the United States suggested that the Court could also grant relief under the All Writs
Act, 28 U.S.C. 1651, which authorizes courts to issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law. Hr'g Tr. 60, Feb. 28, 2008 (quoting 28 U.S.C.
1651(a)). The Magistrate Judge established a briefing schedule at the hearing and, in so doing, specifically
requested that the parties address whether relief was available under the All Writs Act, as suggested. Id. at 7374.
Intervening Plaintiffs did not oppose the imposition of such injunctive relief, however, they argued that any such
relief, standing alone, would be insufficient to punish White for his conduct. Mag. Judge Order 30, ECF No. 98.
*27 After briefing had concluded, Intervening Plaintiffs raised two additional sources of support for the relief
requested against White.
49
Mag. Judge Order 1617, ECF No. 98. First, they cited 47 U.S.C. 223, which
criminalizes the use of a telephone or other communications device to annoy, abuse, threaten, or harass any
person. Id. at 16. Intervening Plaintiffs argued that White's postings encouraged or induced others to use the
telephone to harass counsel (Mottley and/or Wagner) in contravention of 223. Intervening Plaintiffs also cited 18
U.S.C. 119, which concerns the protection of certain individuals from publication of restricted personal
information. Id. at 17. However, they apparently did not argue the application of 119 to the facts before the
Court. Id.
B. Sources of Court's Authority to Grant the Relief Sought
The Magistrate Judge Order considered the various forms of relief sought and concluded that the only practicable
remedy available to Intervening Plaintiffs was an award of attorneys' fees pursuant to the Court's inherent powers,
as provided for in Chambers. Mag. Judge Order 28, ECF No. 98. The Magistrate Judge Order declined to issue a
show cause order or to certify the matter to the district court for civil and/or criminal contempt, as Intervening
Plaintiffs had initially requested, finding that the Court's inherent authority provided ample support for any decision
to sanction White, should it determine that sanctions were appropriate. Id. at 29. The Magistrate Judge Order also
declined to provide any relief under the All Writs Act, 28 U.S.C. 1651(a), as proposed by the United States,
concluding that the only relief available under the All Writs Act, based on the record before the Court, would be
prospective injunctive relief and not attorneys' fees, as Intervening Plaintiffs had requested. Id. at 3031.
Regarding the additional bases for action proposed at the April 11, 2008 status conference, the Magistrate Judge
Order concluded that relief under 47 U.S.C. 223 was not appropriate, despite Mottley's testimony regarding the
phone calls he had received, because no evidence had been presented that connected those calls to any actions
taken by White and nothing else before the Court implicated 223's provisions. Id. at 17. Concerning 18 U.S.C.
119, the Magistrate Judge Order noted that the parties had failed entirely to argue the availability of relief under
119 and, accordingly, concluded that the statute, which was generally intended to protect court personnel involved
in active court proceedings, was not applicable to the case. Id. at 18.
Intervening Plaintiffs have not objected to the Magistrate Judge Order's conclusion that the only remedies
practically available in this matter would be an award of attorneys' fees under the Court's inherent authority to
issue sanctions under Chambers, supra. Id. at 36. Rather, Intervening Plaintiffs have continuously objected only to
the Magistrate Judge Order's conclusions regarding the Court's ability to sanction White's conduct pursuant
to Chambers and to the Magistrate Judge Order's corresponding discussion of the significant constitutional
concerns implicated by such an award. The nature of Intervening Plaintiffs' ongoing objection has been repeatedly
clarified in the extensive briefings before the Court and at the hearing held on July 17, 2013.
50

*28 Considering all of Intervening Plaintiffs' arguments regarding the Magistrate Judge Order and their
representations at the July 17, 2013 hearing, the Court finds that Intervening Plaintiffs have failed to file specific
written objections to the proposed findings and recommendations concerning any proposed ground for relief
except an exercise of the Court's inherent powers pursuant toChambers. Fed.R.Civ.P. 72(b). Thus, the Court need
only review such findings and recommendations for clear error. See Diamond,416 F.3d at 315. Having reviewed
the record and the Magistrate Judge's conclusions regarding each and every proposed ground for relief to which
objection was not made, the Court finds no such clear error and, accordingly, ADOPTS and APPROVES the
same. In so doing, the Court notes that the Magistrate Judge did not find that the Court lacked the authority to
sanction White pursuant to the alternatively proposed grounds for relief, but instead declined to exercise any such
authority, in his discretion. The Court turns, then, to the de novo review of its authority to grant the relief sought
pursuant to its inherent powers, as set forth in Chambers and related cases.
C. Court's Inherent Authority to Sanction White under Chambers
After determining that an award of attorneys' fees pursuant to the Court's inherent authority under Chambers would
provide the only practicable remedy for White's conduct, the Magistrate Judge considered the possibility of
imposing such sanctions, concluding, first, that such an award was entirely discretionary in nature. Mag. Judge
Order 36, ECF No. 98. The Magistrate Judge went on to consider whether, in light of the First Amendment
concerns implicated by an award of sanctions against White for the content of his Internet postings, such an award
was an appropriate exercise of the Court's discretion and its inherent power, concluding that it was not. The
Magistrate Judge Order's First Amendment analysis is considered at length below. Here, the Court first addresses
the nature of its inherent authority under Chambers and whether that authority would support an award of
sanctions against White, were such an award deemed appropriate.
1. Legal Standard
Article III, Section 1 of the United States Constitution vests [t]he judicial Power of the United States ... in one
supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. U.S.
Const. art. III, 1. Section 2 defines the scope of this power, providing that it shall extend to certain enumerated
Cases and Controversies. U.S. Const. art. III, 2. The first session of the first United States Congress, which
convened two years after the Constitutional Convention, enacted the Judiciary Act of 1789 by which it exercised
the authority provided in Article III to create a system of lower federal courtsincluding this Courtcapable of
exercising Article III's judicial power.
51
See The Judiciary Act of 1789, ch. 20, 1 Stat. 73, 92 (1789); see also John
O. Peters, From Marshall to Moussauoi: Federal Justice in the Eastern District of Virginia 45 (2013); Charles
Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L.Rev. 49, 57 (1923).
*29 It has long been recognized that, inherent in the judicial power vested and defined by Article III, there exist
[c]ertain implied powers [that] must necessarily result to our Courts of justice from the nature of their institution,
powers which cannot be dispensed with in a Court because they are necessary to the exercise of all others.
Chambers, 501 U.S. at 43 (quoting United States v. Hudson, 7 Cranch 32, 34, 3 L.Ed. 259 (1812))
(citing Roadway Express, Inc. v. Piper, 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980)). These powers
are governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so
as to achieve the orderly and expeditious disposition of cases. Id. (quoting Link v. Wabash R. Co., 370 U.S. 626,
63031, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)). Such powers are generally shielded from direct democratic
controls.
52
Roadway Express,447 U.S. at 764; accord Chambers, 501 U.S. at 44. Accordingly, and in light of their
potency, they must be exercised with restraint and discretion. Roadway Express, 447 U.S. at 764.
The federal courts' inherent power to sanction bad faith or contemptuous conduct is the most prominent of the
inherent powers.Roadway Express, 447 U.S. at 764; accord Chambers, 501 U.S. at 44 (quoting Ex
parte Robinson, 19 Wall. 505, 510, 22 L.Ed. 205 (1874)). Such broad power necessarily inheres to the court as a
means of protecting the due and orderly administration of justice and [of] maintaining the authority and dignity of
the court.... Roadway Express, 447 U.S. at 764 (quoting Cooke v. United States, 267 U.S. 517, 539, 45 S.Ct. 390,
69 L.Ed. 767 (1925)) (internal quotation marks omitted) (citing 4 W. Blackstone, Commentaries *282*285); see
also In re Howe, 800 F.2d 1251, 1252 (4th Cir.1996); United States v. Schaffer Equip. Co., 11 F.3d 450, 462 (4th
Cir.1993). It reaches both conduct before the court and that beyond the court's confines. Chambers, 501 U.S. at
44. When exercising this power, a court has wide discretion to fashion an appropriate sanction for conduct [that]
abuses the judicial process, including, in the extreme case, the outright dismissal of an action. Chambers, 501
U.S. at 4445 (citing Roadway Express, 447 U.S. at 765).
Pursuant to Chambers, sanctions under a court's inherent power can readily include an award of attorneys' fees
under the appropriate circumstances, which the Supreme Court described as exceptions to the general rule in
federal courts that a litigant cannot recover his counsel fees. Chambers, 501 U.S. at 45 (summarizing the wide
range of available sanctions and concluding that, the less severe sanction of assessment of attorney's fees is
undoubtedly within a court's inherent power as well (quoting Roadway Express, 447 U.S. at 765)). Under one
such exception, a court may award attorneys' fees when a party has acted in bad faith, vexatiously, wantonly, or
for oppressive reasons. Id. (quoting Alyeska, 421 U.S. at 25859). When, as here, an award is sought for bad
faith conduct, a court may assess attorneys' fees against the responsible party if it finds that fraud has been
practiced upon it, or that the very temple of justice has been defiled. Id. (quoting Universal Oil Prods. Co. v. Root
Refining Co., 328 U.S. 575, 580, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946)). Such an award may also be appropriate
when a party shows bad faith by delaying or disrupting the litigation or by hampering enforcement of a court
order.
53
Id. (quoting Hutto v. Finney, 437 U.S. 678, 689 n. 14, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978)). The
imposition of sanctions under this bad-faith exception:
*30 [T]ranscends a court's equitable power concerning relations between the parties and reaches a court's
inherent power to police itself, thus serving the dual purpose of vindicat[ing] judicial authority without resort to the
more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for the expenses
caused by his opponent's obstinacy.
Id. (quoting Hutto, 437 F.3d at 689 n. 14)) (alterations in Chambers ). However, a federal court must exercise
caution in invoking its inherent power, and it must comply with the mandates of due process, both in determining
that the requisite bad faith exists and in assessing fees. Id. at 50 (citing Roadway Express, 447 U.S. at
767). Indeed, in recognizing the court's authority to shift fees under this inherent power, the Fourth Circuit has
emphasized that such authority is limited to the extraordinary circumstances where bad faith or abuse can form a
basis for doing so. Hensley v. Alcon Labs., Inc., 277 F.3d 535, 543 (4th Cir.2002) (citingChambers, 501 U.S. at
4546)
A federal court's inherent power to sanction may be exercised even if a statute or rule also authorizes sanctions for
the same egregious conduct. Chambers, 501 U.S. at 50 ([N]either is a federal court forbidden to sanction bad-faith
conduct by means of the inherent power simply because that conduct could also be sanctioned under the statute
or the Rules.). But the Chambers court expressed the preference that, where there is bad-faith conduct in the
course of litigation that could be adequately sanctioned under the Rules, the court ordinarily should rely on the
Rules rather than the inherent power. Id. On the other hand, if in the informed discretion of the court, neither the
statute nor the Rules are up to the task, the court may safely rely on its inherent powers. Id.
Thus, [i]t is well-settled that a federal court, acting under its inherent authority, may impose sanctions against
litigants or lawyers appearing before the court so long as the court makes a specific finding that they engaged in
bad faith conduct. In re Yorkshire, LLC,540 F.3d 328, 332 (5th Cir.2008) (collecting cases); accord Stalley v.
Methodist Healthcare, 517 F.3d 911, 920 (6th Cir.2008) (We have the inherent power to punish with sanctions
those who litigate in bad faith.). The Court's ability to sanction such conduct is not, however, limited to parties and
their counsel.
54
See, e.g., Manez v. Bridgestone Firestone H. Am. Tire, LLC, 533 F.3d 578, 585 (7th Cir.2008) (No
matter who allegedly commits a fraud on the courta party, an attorney, or a nonparty witnessthe court has the
inherent power to conduct proceedings to investigate that allegation and, if it is proven, to punish that conduct.); In
re Rainbow Magazine, Inc., 77 F.3d 278, 278 (9th Cir.1996) (upholding sanctions levied under the court's inherent
powers against corporate debtor's principal who orchestrated the bad faith filing of the bankruptcy petition); Corder
v. Howard Johnson & Co., 53 F.3d 225, 232 (9th Cir.1994) (citing Roadway Express, 447 U.S. at 764) ([E]ven in
the absence of statutory authority, a court may impose attorney's fees against a non-party as an exercise of the
court's inherent power to impose sanctions to curb abusive litigation practices). But see In re VIII S. Mich.
Assocs., 175 B.R. 976, 98283 (Bankr.N.D.Ill.1994) (concluding that Chambers should be limited to parties and
their counsel and declining to impose sanctions litigation conduct to a non-party expert who has not appeared
before the court and has not violated a court order). The court's inherent power to sanction a nonparty's bad faith
conduct is not, however, without limit.See Helmac Prods. Corp. v. Roth (Plastics) Corp., 150 F.R.D. 563, 567
(E.D.Mich.1993); accord Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 140607 (5th
Cir.1993) (quoting MASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir.1990))
([I]nherent authority is not a broad reservoir of power, ready at an imperial hand, but a limited source; an implied
power squeezed from the need to make the court function. ... In short, the inherent power springs from the well of
necessity, and sparingly so.); cf. Am. Civil Liberties Union v. Holder, 673 F.3d 245, 256 (4th Cir.2011) (noting that
the inherent powers of the lower federal courts are not absolute). Although the federal courts may certainly
sanction disruptive or disobedient bad faith conduct, the Court's power to sanction cannot possibly extend
to everyone who interferes with litigation before the court. Otherwise the power to sanction would be so wide that it
would be unenforceable. Helmac Prods., 150 F.R.D. at 567 (emphasis added).
*31 Several courts have considered the proper scope of the inherent authority to sanction nonparties, however, no
clear rule has emerged, especially with respect to non-parties who[, as here,] did not violate any specific court
order. United States v. City of Detroit, Mich., No. 0372258, 2010 WL 5326953, at *3 (E.D.Mich. Dec.21,
2010) (citing In re So. Mich. Assocs., 175 B.R. 976, 98187 (Bankr.N.D.Ill.1994)). In such cases, courts have
generally agreed that, although the inherent power to sanction includes sanctioning non-parties for bad faith
conduct ... additional safeguards may be warranted. Feldman v. Davidson, No. 0561760CIV, 2009 WL 995473,
at *2 (S.D.Fla. Apr.13, 2009); accord Anchondo v. Adnerson, Crenshaw & Assocs., LLC, No. CV 08202 RB/WPL,
2011 WL 4549279, at *4 (D.N.M. Sept.29, 2011) (citing Helmac Prods., 150 F.R.D. at 568); Pafumi v.
Davidson, No. 0561679CIV, 2008 WL 4084418, at *3 (S.D.Fla. Sept.3, 2008).
In determining the appropriate safeguards, some courts have focused on the degree of disruption resulting from
the nonparty's bad faith conduct, awarding sanctions, for instance, when the nonparty's acts or omissions have
caused the parties to incur additional expenses or have resulted in some other severe prejudice. See, e.g., SECO
Nevada v. McMor die (In re Holloway), 884 F.2d 476, 477 & n. 2 (9th Cir.1989) (per curiam) (sanctioning a court
reporter for repeated and flagrant failures to meet court-imposed deadlines that resulted in severe prejudice to
both the parties and the court); Moten v. Bricklayers, Masons & Plasterers Int'l Union of Am., 543 F.2d 224, 239
40 (D.C.Cir.1976) (per curiam) (awarding a portion of the fees and costs incurred by the fee petitioner against a
non-party who unsuccessfully sought to intervene). Other courts have additionally considered the degree of the
nonparty's interest and participation in the underlying litigation. See, e.g., Helmac Prods., 150 F.R.D. at 567; see
also Anchondo, 2011 WL 4549279, at *4 (applying the Helmac test); Adell Broad. Corp. v. Ehrlich, Nos. 299061 &
299966, 2012 WL 468258, at *9 (Mich.App. Feb.14, 2012) (same). In these latter cases, a two-part test has
emerged to assist courts in determining whether to invoke their inherent power to sanction a nonparty. Specifically,
for his disruptive conduct to be sanctionable, a non-party not subject to court order must (1) have a substantial
interest in the outcome of the litigation and (2) substantially participate in the proceedings in which he
interfered. Helmac Prods., 150 F.R.D. at 568; cf. Books are Fun, Ltd. v. Rosebrough, 239 F.R.D. 532, 555
(S.D.Iowa 2007)(noting that the Helmac court pioneered [this] two-part test to gauge the propriety of imposing
sanctions upon [a] non-party but distinguishing the facts before the court from those in Helmac ). This test is
designed to effectively limit the scope of the Court's inherent power to sanction to those individuals who were
either (1) parties, (2) subject to a court order, or (3) real parties in interest.Helmac Prods., 150 F.R.D. at 568. it
excludes an individual who has only a minor degree of involvement with the litigation and who acts outside the
presence of the court. Id. For, although such a person may interfere with litigation, the Court's interest in
safeguarding the integrity of its proceedings must give way to a limitation on the Court's authority commensurate
with its traditional powers. Id. With these approaches in mind, the Court turns to its analysis of the instant Motion
for Sanctions.
2. Analysis
*32 Intervening Plaintiffs have sought an award of sanctions against White on the ground that his numerous
Internet postings-many of which disclosed counsel's personal, identifying informationconstituted a bad faith
attempt to disrupt the proceedings of the Court. Intervening Pls.' Reply Br. in Supp. of Objections to Report &
Recommendation of Mag. Judge (PostRemand Reply Br.) 2, ECF No. 189. Specifically, Intervening Plaintiffs
have argued that, while subject to lawful subpoenas issued out of this District and the Western District of Virginia
and during the pendency of his own Motion to Quash those subpoenas, White stepped outside the rule of law
and the Court's process by authoring the allegedly threatening posts, which were arguably designed to intimidate
Intervening Plaintiffs and their counsel. Id. at 12.
Before this Court can sanction White for his online writings pursuant to its inherent power, it must determine
whether he acted in bad faith when he authored and published the relevant postings, whether he was subject to
the Court's inherent power to sanction at the time he did so, and whether any such bad faith conduct disrupted or
interfered with the underlying litigation. See Chambers, 501 at 4546 (authorizing an award of attorneys' fees
pursuant to the court's inherent powers when a party has acted in bad faith, vexatiously, wantonly, or for
oppressive reasons, as shown by [his] delaying or disrupting the litigation or by [his] hampering enforcement of a
court order (internal quotations and quotation marks omitted)); In re Holloway, 884 F.2d at 477 (concluding that
sanctions under the Court's inherent power were appropriate when a court reporter's repeated failure to meet
deadlines caused severe prejudice to both the parties and the court); Helmac Prods., 150 F.R.D. at
568 (requiring, in part, that a nonparty not subject to a court order substantially participate in the proceedings in
which he interfered before he may be subject to sanctions under the court's inherent power (emphasis added)).
As to the first inquiry, whether White acted in bad faith, the Magistrate Judge had little question that White had
engaged in bad-faith conduct insofar as his internet postings were meddlesome in nature, wholly unwarranted and
uninvited, and designed to interfere with counsel's representation of intervening Plaintiffs. Mag. Judge Order 40,
ECF No. 98. On this point[,] the Court [wa]s unequivocal in its condemnation of White for the methods he used to
voice his objections. Id. This Court agrees.
White authored numerous offensive postings concerning the underlying litigation, Intervening Plaintiffs, and their
counsel, and made such postings publicly available on the Internet. Several contained counsel's personal,
identifying information and arguably encouraged their readers to contact or otherwise harass counsel (especially
Mottley) based on their representation of Intervening Plaintiffs' interests in the underlying Fair Housing Act
suit. Many of White's postings appeared shortly after filings and docket entries were made in the case, either by
the parties or the Court. For example, the February 22, 2008 posting to the Vanguard News Network that initially
gave rise to Intervening Plaintiffs' Motion for Sanctions was made within hours of the Court's setting of the
February 28, 2008 subpoena hearing. Compare Minute Entry, Feb. 22, 2008 (entered at 8:47 a.m. setting
hearing) with PreHr'g Br. in Opp'n Ex. A., ECF No. 592 and PreHr'g Reply Br. Ex. E, ECF No. 676 (reflecting
postings to Vanguard News Network and Yahoo! Groups at 3:35 p.m. on February 22, 2008). White's April 9, 2008
posting to Overthrow.comwhich included personal, identifying information for both Mottley and Wagnerwas
published while expedited briefing concerning his substantively identical April 3, 2008 posting to Overthrow.com
was ongoing and was apparently corrected in response to information contained in counsel's filings with the Court.
Specifically, the Government's attorney, Wagner, had filed a supplemental brief in support of intervening Plaintiffs'
Motion for Sanctions on April 8, 2008 at 4:50 p.m., in accordance with the Magistrate Judge's Order entered on the
previous day. Supplemental Submission in Supp. of Mot. for Sanctions, ECF No. 75. In that brief, Wagner noted
that White had incorrectly listed her residential address. Id. at 2 n. 1. White published the corrected posting, which
amended Wagner's home address, at 8:46 a.m. the next morning, before his counsel filed the ordered response
brief at 5:18 p.m. See Mag. Judge Order 28 & n.34; see also Supplemental Resp. in Opp'n to Mot. for Sanctions,
ECF No. 77. The timing of White's postings exemplifies, as Intervening Plaintiffs have argued, his repeated
decision to step outside of this Court's process to express his dissatisfaction with that process generally and with
counsel in particular.
*33 Furthermore, the record shows that white continued authoring postings even after being strongly admonished
by the Court regarding the dangers inherent in and the Court's deep concern with such activities. At the February
28, 2008 hearing on White's Motion to Quash and Intervening Plaintiffs' related motion, the Magistrate Judge
expressed his profound[ ] concern about the risk of harm to Mr. Mottley and his family on account of White's
unfortunate submission to ... the Vanguard site, because it contains personal information, including address and
telephone number and even Mr. Mottley's wife. Hr'g Tr. 73, Feb. 28, 2008. Out of this concern, the Magistrate
Judge suggested that White remove the posting, which he agreed to do. Id. at 6971. The Magistrate Judge then
established an abbreviated briefing schedule for the Motion for Sanctions because of the urgency of the matter
and the concerns the Court has about the personal safety of Mr. Mottley. Id. at 73 Indeed, the Magistrate Judge's
final remarks at the hearing made clear the Court's view of White's activities.
Now, finally, Mr. Brown, come up to the podium Last comment. The last e-mail that Mr. White apparently submitted
to this blog is dangerous and intimidating, potentially, and I admonish you to understand, on your own behalf and
on behalf of your client, that the Court is very, very concerned about the possible effect on the personal safety of
counsel for the intervening plaintiffs and will take such action as is necessary to protect the interest of those who
come before the Court to exercise their rights. The Court will take this action [for] Mr. White, who is in the same
position. We clear on that?
Id. at 7576. White's counsel affirmed, Certainly, Your Honor. Id. at 76. The Magistrate Judge's admonishment
could not have been more aptly put nor more clear. And yet, White's conduct continued, in blatant disregard of
both the Court's expressed concern and his own representations to the Court. Indeed, despite his agreement to
remove the February 22, 2008 posting from the Vanguard News Network, white failed to disclose the existence of
an identical posting to ANSWP's Yahoo! Groups page, leaving that posting publicly available for weeks following
the February 28, 2008 hearing and removing it only on the eve of the April 2, 2008 evidentiary hearing in this
matter.
55
Hr'g Tr. 82, Apr. 2, 2008. When asked why he failed to disclose or remove this second posting, White
testified, Because it was a pointless endeavor to begin with, stating that he removed only the posting of which
counsel and the Court were aware to make [them] feel happier than [they] felt before. Id. at 83. Although
Intervening Plaintiffs have not sought sanctions on the basis of White's deceptive conduct and dismissive attitude,
as revealed at the April 2, 2008 evidentiary hearing, such conduct, when viewed in the context of the Court's
strongly worded admonishments, supports the conclusion that White acted in bad faith when he continued to
author and maintain the relevant postings.
*34 Having determined that the timing and context of White's Internet postings support a finding of bad faith, the
Court turns to the question of whether White was subject to the Court's inherent authority when he authored and
published those postings. As discussed above, White was not originally a party to the underlying action.
Additionally, despite the Magistrate Judge's firm reproach, he never ordered White to remove the relevant postings
or to refrain from authoring future postings. Accordingly, White's conduct did not violate any specific court order'
City of Detroit, 2010 WL 5326953, at *3 (citing In re So. Mich. Assocs., 175 B.R. at 98187).However, although
White was not a party to the underlying action, he was not entirely removed from the matter. White entered his own
name on the Court's records and sought to invoke the power of this Court to his own benefit when he filed his
Motion to Quash on February 11, 2008, nearly two weeks before the first relevant postings were published on
February 22, 2008.
56
Indeed, the Magistrate Judge recognized and affirmed White's status before the Court at the
February 28, 2008 hearing, noting that White was in the same position as Intervening Plaintiffs, who had come
before the Court to exercise their rights. Hr'g Tr. 7576, Feb. 28, 2008. As another court so aptly stated, This is
not a situation in which the court is being asked to enter an award against a person wh[o] had in no way entered its
name upon the court records. Moten, 543 F.2d at 239 (discussing an award of attorneys' fees and costs under
Title VII against a nonparty association that had sought to object to a settlement agreement without formally
intervening).
Even under the two-part Helmac test, White's Motion to Quash evidences a sufficient degree of interest and
participation to support a finding that he was subject to this Court's inherent power when he authored the relevant
postings, including its power to sanction bad faith litigation conduct. First, White had a substantial interest in the
outcome of the litigation concerning his Motion to Quash, which initially addressed all of the subpoenas issued to
himself and his various organizations. Helmac Prods., 150 F.R.D. at 568. Had the Court ordered White to comply
with the subpoenas, he would have been required to turn over numerous documents and electronic devices, as
Intervening Plaintiffs' counsel represented at this Court's July 17, 2013 hearing. The fact that he sought to avoid
such compliance through hiring an attorney and moving to quash the subpoenas (albeit in the wrong district),
shows that White considered his interest in the matter to be substantial. Indeed, this fact is confirmed by White's
own description of the matter in the relevant postings. See, e.g., PreHr'g Reply Br. Ex. B, ECF No. 673
(characterizing the matter as a subpoena lawsuit, estimating that the dispute concerning the subpoenas would
cost ANSWP several thousand dollars, and declaring White's intent to file suit against Mottley for unlawfully issuing
the subpoenas).
*35 Second, by filing the Motion to Quash, white substantially participated in the dispute. Helmac Prods., 150
F.R.D. at 568. He entered his own name on the Court's records and sought to invoke the Court's power to his own
end. It would be untenable for this Court to allow White to employ the Court's power to limit a lawfully issued
subpoena and simultaneously evade that same power, as applied to his own bad faith conduct. The Court does not
read the relevant case law to compel such a result. Indeed, even courts that have declined to extend Chambers to
nonparties have done so on the ground that those parties ha[d] not appeared before the court or violated a court
order. See, e.g., In re Vlll S. Mich. Assocs.., 175 B.R. at 98283. White appeared before this Court by seeking
relief from a subpoena lawfully issued out of this District. He cannot now claim immunity from the Court's inherent
powers simply because he was not named in the initial and intervening complaints. Although not a party-in-fact,
White was most certainly a real party in interest, at least during the pendency of his Motion to Quash and the
related Motion for Sanctions.
57
See Helmac Prods.,150 F.R.D. at 568. Indeed, although not dispositive, even
White, in his own contemporaneous writings, recognized the Court's power over him. See, e.g., PostHr'g
Supplemental Br. in Supp. Ex. A, ECF No. 762 (declaring that White was under no order from the court in
Virginia Beach or any other Court not to publish [counsel's] address or phone number while recognizing that the
Court has the authority ... to order [him] not to publish information that is disrupting the course of a trial or
prejudicing one party or another).
For the above reasons, the Court concludes that, although White was not originally a party to the underlying
litigation, he brought himself within the scope of the Court's inherent Article III powers when he filed his Motion to
Quash on February 11, 2008. He remained subject to the Court's power during the pendency of that motion and
the related Motion for Sanctions. Because White acted in bad faith when he authored the relevant postings and he
did so while within reach of the Court's inherent authority to sanction such bad faith conduct, the only question
remaining is whether White's bad faith conduct disrupted or interfered with the prosecution of this case, such that
the Court shouldin its discretionexercise its inherent power to sanction White, as Intervening Plaintiffs request.
Before considering the degree to which White's conduct interfered with the underlying dispute,
58
the Court reviews
the nature of that conduct at issue-speech-and the significant constitutional concerns implicated by an award of
sanctions based solely on such conduct. It is to these questions the Court now turns.
D. Factors Informing the Court's Discretion to Exercise its Inherent Authority to Sanction White
1. Nature of White's Sanctionable Conduct
*36 The first question the Court considers in determining whether to sanction White is the nature of his
sanctionable conduct, that is, those actions that he took (as the Court has already found) in had faith during the
course and within the scope of the underlying litigation. Intervening Plaintiffs have proffered only White's Internet
postings and emails in support of their Motion for Sanctions, or, put more simply, his speech. There are no
allegations, before this Court at least, that White destroyed evidence, filed duplicitous or meritless pleadings, or
took any other action designed to disrupt or delay the underlying litigation.
59
Intervening Plaintiffs have sought and
continue to seek sanctions based only on the content of White's Internet postings and communications.
Considering the propriety of such an award, the Magistrate Judge concluded that sanctions under Chambers were
appropriate only if White's speech fell outside the purview of the First Amendment to the United States
Constitution, that is, only if his postings amounted to a true threat as that term has been defined under precedents
established by the Supreme Court and ... interpreted and applied by the Fourth Circuit. Mag. Judge Order 41,
ECF No. 98. Intervening Plaintiffs object to the Magistrate Judge's consideration of this question, arguing that [n]o
First Amendment analysis need be applied to sanction conduct aimed at disrupting a judicial proceeding. Post
Remand Br. in Supp. of Obj. 17, ECF No. 152; accord PostRemand Reply Br. 13, ECF No. 189. This Court
disagrees, finding, for the reasons set forth below, that the status of White's speech under the First Amendment is
an integral and indispensable question necessary to the Court's determination of the Intervening Plaintiffs' request
for relief.
a. Relevance of the First Amendment
The First Amendment provides that Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise therof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for redress of grievances. U.S. Const. amend. I. The
freedom of speech and of the press secured by the First Amendment ... against abridgment by the United States is
similarly secured to all persons by the Fourteenth [Amendment] against abridgment by the state. Scheider v.
State, 308 U.S. 147, 160, 60 S.Ct. 146, 84 L.Ed. 155 (1939). Similarly, as the Supreme Court recently observed,
[c]ourts, too, are bound by the First Amendment. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 326,
130 S.Ct. 876, 175 L.Ed.2d 753 (2010) ( Substantial questions [as to the courts' own lawful authority] would arise
if courts were to begin saying what means of speech should be preferred or disfavored in their review of allegedly
unconstitutional acts of Congress);see also New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11
L.Ed.2d 686 (1964) (holding that judgment in a civil law suit for defamation must be measured by standards that
satisfy the First Amendment).
*37 It is well recognized that [t]he First Amendment affords protection to symbolic or expressive conduct as well
as to actual speech.Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (collecting
cases). Indeed, a fundamental principle of First Amendment jurisprudence is that all such expression is
presumptively protected against government interference and restraint.See Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 6566, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); Roaden v. Kentucky, 413 U.S. 496, 50405,
93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). Only in limited and defined circumstances, such as when the expression is
judicially determined to be a true threat or an incitement to imminent lawlessness, does the expression lose its
protected status.See, e.g., Black, 538 U.S. at 35860 (noting that [t]he First Amendment permits restrictions upon
the content of speech in a few limited areas, which are of such slight social value as a step to truth that any benefit
that maybe derived from them is clearly outweighed by the social interest in order and morality, including true
threats (quoting R.A.V. v. City of St. Paul, 505 U.S. 377, 38283, 112 S.Ct. 2538, 120 L.Ed.2d 305
(1992))); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (recognizing that
the Constitution has immunized from government control those categories of speech protected by the First and
Fourteenth Amendments, but holding that advocacy of the use of force or of law violation ... directed to inciting or
producing imminent lawless action and likely to incite or produce such action is not so protected). Accordingly,
when speech falls within the ambit of the First Amendment, the governmentincluding this Courtlacks the power
to regulate or prevent its dissemination based solely on the fact that a vast majority of citizens believe [it] to be
false and fraught with evil consequence. Black, 538 U.S. at 358(quoting Whitney v. California, 274 U.S. 357, 374,
47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring)) (internal quotation marks omitted); accord Texas v.
Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); cf. Citizens United, 558 U.S. at
326 (observing that serious questions concerning the court's authority would arise if courts were to begin saying
what means of speech would be preferred or disfavored). Indeed, the First Amendment protects vehement,
caustic, and sometimes unpleasantly sharp attacks, as well as language that is vituperative, abusive, and
inexact. Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) (quoting Sullivan, 376
U.S. at 270) (internal quotation marks omitted). This insistent protection of disfavored or even repugnant speech
reflects our profound national commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open. Id.; accord Knox v. Serv. Emp. Int'l Union, Local 1000, U.S. , , 132 S.Ct.
2277, 2288, 183 L.Ed.2d 281 (2012) (collecting cases not[ing] the close connection between our Nation's
commitment to self-government and the rights protected by the First Amendment). It creates an open
marketplace in which differing ideas about political, economic, and social issues can compete freely for public
acceptance without improper government interference. Knox, 132 U.S. at 2288 (citingNew York State Bd. of
Elections v. Lopez Torres, 552 U.S. 196, 208, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008)).
*38 Where government action, such as an award of sanctions, is directed toward presumptively protected
expression, our system of justice places the duty ... on this Court to say where the individual's freedom ends and
the State's power begins. Thomas v. Collins,323 U.S. 516, 52930, 65 S.Ct. 315, 89 L.Ed. 430 (1945). It is a
delicate and, at times, vexatious question, one that in this case requires the Court to balance its own interests and
the interests of those appearing before it against the indispensable democratic freedoms secured by the First
Amendment. Id. at 530 (collecting cases); accord United States v. Carmichael, 326 F.Supp.2d 1267, 1279
(M.D.Ala.2004) (The court's inherent authority or discretion to regulate the actions of trial participants is ... limited
by the constitutional rights of the parties.); Helmac, 150 F.R.D. at 568 ([T]he Court's interest in safeguarding the
integrity of its proceedings is not without limit, it must, at some point, give way to a limitation on the Court's
authority commensurate with its traditional powers). The preferred place of such freedoms in our constitutional
scheme gives these liberties a sanctity and a sanction not permitting dubious intrusions. Thomas, 323 U.S. at
530. Accordingly, where such liberties are implicated, the Court cannot properly consider the exerci se of its own
constitutional power without balancing such an exercise against the constitutional protection provided by the First
Amendment. And, when weighing power against protection, it is the character of the right assertedly threatened or
violated[,] rather than [of] the power being exercised[,] that determines the proper standard of review. Schad, 452
U.S. at 68 (citingThomas, 323 U.S. at 52930). Thus, the Court's consideration of Intervening Plaintiffs' Motion for
Sanctions cannot begin and end with its determination concerning the scope of its inherent authority under Article
III. The Court must also discharge its duty to consider the status of White's bad faith conductthat is, his speech
under the First Amendment.
60

b. Status of White's Speech under the First Amendment
As discussed above, speech, such as White's Internet postings and emails, is presumptively protected under the
First Amendment unless it falls within certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which has never been thought to raise any Constitutional problem. Chaplinsky v. New
Hampshire, 315 U.S. 568, 57172, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (collecting cases). These categorical
exceptions from First Amendment protection include the lewd and obscene, the profane, the libelous, and the
insulting or fighting wordsthose which by their very utterance inflict injury or tend to incite an immediate breach
of the peace. Id. at 572. They also include true threats and speech that incites imminent lawless
action. See Watts, 394 U.S. at 708; See also Brandenburg, 395 U.S. at 44849.
*39 In determining not to recommend an award of sanctions against White for his various postings, the Magistrate
Judge focused primarily on whether White's writings rose to the level of a true threat, as that term had been
defined by the Supreme Court in Watts v. United States, 394 U.S. 705, 70508, 89 S.Ct. 1399, 22 L.Ed.2d 664
(1969) and Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), and interpreted in
subsequent decisions across various Circuits and the Supreme Court. On this question, the Magistrate Judge
reviewed a number of such cases, the majority of which relate[d] to the criminal prosecution of an accused under
a variety of federal statutes proscribing threats of harm communicated either directly or indirectly by the speaker or
communicated by mail, telephone, or other electronic communication such as by email or via the [I]nternet. Mag.
Judge Order 43, ECF No. 98. The Magistrate Judge observed that the vast majority of cases involved a
threatening communication ... included a direct threat of harm or statements that could be interpreted as a direct
threat of harm. Id. at 46. The Magistrate Judge concluded that the cases were, therefore, not on point here,
because any arguably threatening language used by White was indirect, at best.Id. at 4647.
The Magistrate Judge then discussed, at length, the various tests that courts have used to determine whether
speech constitutes a true threat and the burden of proof applicable to such an inquiry. See Mag. Judge Order 47
50. Noting that the Fourth Circuit applies a reasonable listener test and a general intent standard of proof, the
Magistrate Judge determined that, under these approaches, the mere communication of a true threat, with the
intent to transmit the communication is sufficient to establish the accused's guilt under the various federal
statutes, id. at 50, and further observed that it is not always necessary that the intended victim actually be
intimidated or threatened by the communication, or that the threatening communication actually be communicated
to the intended victim, id. (citing United States v. Spring, 305 F.3d 276, 28081 (4th Cir.2002) and United States
v. Morales, 272 F.3d 284, 28588 (5th Cir.2001)). Although the Magistrate Judge found this case to be
distinguishable from all of the precedents before the Court at that time, he nevertheless looked to the analyses
described in those cases to determine whether White's speech was proscribable as a true threat. See id. 5152.
Considering the Supreme Court's decision in Watts and various Fourth Circuit cases interpreting that decision, the
Magistrate Judge concluded that, based on the entire context of the various postings, the subject communications
by White d[id] not rise to the level of a true threat as contemplated by current Supreme Court and Fourth Circuit
precedents. Id. at 57.
Specifically, the Magistrate Judge found that there was no evidence before the Court that White communicated
any threats directly to Mottley, a fact that distinguished this case from virtually all cases of which the Court [wa]s
aware on this topic, in which the accused's statements were directly or indirectly tied to a threat of harm to one or
more victims. Id. at 65. Additionally, the Magistrate Judge found that nowhere in the postings by White did he
issue any direct, or even indirect, threat of violence or suggestion of physical harm against Mottley. Id. at 6566
(White's postings suggest a number of actions that his readers might take against Mottley ... many of which would
be inconvenient and unfortunate, and even illegal in their own right, but which do not amount to a threat of violence
perpetrated against Mottley. (emphasis in original)). Furthermore, the context of White's postings established that
he frequently use[s] the various [I]nternet websites and blogs to attack any group or individual who opposes [his]
cause or who support [s] causes that conflict with [his] viewpoints. Id. at 66. And, although there was some
suggestion that White's prior, unrelated postings had inspired action by his followers, the Magistrate Judge
observed that there [wa]s nothing concrete by which the Court could conclude that [such] postings have led to any
acts of violence or harm to others. Id. at 67.
*40 The Magistrate Judge also considered the fact that there was no evidence concerning the audience for White's
postings and nothing clearly relating those postings to any actions taken against counsel (including the two late-
night phone calls to Mottley). Id. at 6768. In the same vein, the Magistrate Judge found that the wide availability of
White's writings on the Internet made them less likely to constitute a true threat than communication delivered
directly to the target. Id. at 6869. Finally, the Magistrate Judge noted that the tone and tenor of White's postings
throughout the pendency of the Motion for Sanctions had become less belligerent. Id. at 7273. The Magistrate
Judge found, for all of these reasons, that White's postings constituted protected speech under the First
Amendment. Based on this finding and his further determination that the postings ultimately [had] no measurable
impact on the underlying litigation, the Magistrate Judge recommended denying Intervening Plaintiffs' Motion for
Sanctions. Id. at 74, 7576.
Although the Magistrate Judge focused almost entirely on whether White's various postings constituted true
threats, he also briefly considered whether the writings, if not direct threats that White himself would inflict harm
on Mottley or Mottley's family, were nevertheless intended to incite others to inflict harm on them. Id. at 69.
Citing the analogous district court decision in United States v. Carmichael, 326 F.Supp.2d 1267, 1287
(M.D.Ala.2004), the Magistrate Judge noted that any suggestion of such intent necessarily implicates the
Supreme Court's stringent incitement doctrine. Mag. Judge Order 69, ECF No. 98 (quoting Carmichael, 326
F.Supp.2d at 1287). Describing this rigorous standard, the Magistrate Judge concluded that the evidence was
simply ... insufficient to show that any of White's postings met the imminency requirement of Brandenburg. Id. at
70 (quoting Carmichael, 326 F.Supp.2d at 1287).
Intervening Plaintiffs have strenuously objected to the Magistrate Judge's First Amendment analysis of White's
postings. Specifically, Intervening Plaintiffs contend that the relevant postings did, in fact, constitute a true threat,
such that they fall outside the scope of constitutional protection. PostRemand Br. in Supp. of Obj. 17, ECF No.
152. On this point, Intervening Plaintiffs' argument is two-fold. First, they contend, contrary to the Magistrate
Judge's holding, that White's various postings included true threats of bodily harm, based on White's use of terms
such as noose and open game, his reference to Judge Lefkow, and his veiled suggestion that readers go by
Mottley's residence. Id. at 28. Intervening Plaintiffs argue that, when communications including such references
are sent to members of the neo-Nazi movementa movement notorious for using violence to promote its
repugnant viewsa reasonable listener would understand them to be threats of bodily harm. Id. at 29. Second,
Intervening Plaintiffs contend that constitutionally prescribable true threats are not limited to threats of physical
violence. Rather, threats intended to instill fear of harm to property, alone, are sufficient to show a true
threat. Id. at 33.
*41 Intervening Plaintiffs also object to the Magistrate Judge's analysis of White's speech
under Brandenburg, arguing that the fact that White's speech advocated harm to a specific individual (rather than
overthrow of the government) distinguishes it from the exacting standard set forth in that case. Id. at 37.
Accordingly, Intervening Plaintiffs contend that White's postings in this matter are excluded from First Amendment
protection both as true threats and as incitements to imminent lawlessness.
61

Finally, Intervening Plaintiffs argue that, to the extent that White's postings could be viewed as protected speech,
the Magistrate Judge erred in failing to balance White's First Amendment interests against the compelling
government interests of ensuring that civil rights litigants have access to the courts and preserving the integrity of
judicial proceedings. Id. at 1718. Intervening Plaintiffs argue that a strict scrutiny analysis of the interests
involved would have revealed that the award of sanctions sought is narrowly tailored to serve such compelling
government interests. Id. at 18. They object to the Magistrate Judge's failure to conduct such an analysis.
62

In response to Intervening Plaintiffs' numerous objections, White argues that his postings are protected speech
under the First Amendment, such that they cannot provide a basis for sanctioning him under Chambers. Br. in
Opp. to Intervening Pls.' Objections to Mag. Judge Order 413, ECF No. 185. Regarding the true threat analysis,
White contends that his postings did not constitute a true threat because they did not contain any direct or
indirect expression of an intent to harm, they w[ere] not directly communicated to Mottley, and they did not
threaten physical violence. Id. at 5. In support of this position, White relies primarily on the Fourth Circuit's
analysis of his Warman postings in its decision to affirm the district court's judgment of acquittal on Count Six of
the indictment in the Western District of Virginia. Id. at 57 (citing White, 670 F.3d at 50506, 51314). White next
argues that his postings were not incitements to imminent lawlessness, as that exception was defined
in Brandenburg, because they do not incite any action and, to the extent action is recommended or suggested,
any such suggestion lacks the imminence element required by Brandenburg. Id. at 8.
With all of the above arguments in mind, the Court turns to its own First Amendment analysis of the relevant
postings. The Court first considers whether White's writings amounted to a true threat before addressing whether
the postings should otherwise be excluded from constitutional protection as incitements to imminent lawl essness.
i. True Threats
True threats are a category of speech that falls outside the scope of First Amendment protection. See,
e.g., Watts, 394 U.S. at 707(What is a threat must be distinguished from what is constitutionally protected
speech.). The United States Supreme Court has defined true threats as those statements where the speaker
means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals. Black, 538 U.S. at 359 (citing Watts, 394 U.S. at 708 andR.A.V., 505 U.S. at
388). A speaker need not actually intend to carry out the threat for his speech to be proscribable. Id. at 35960.
Rather, such speech falls outside of the First Amendment, irrespective of whether the speaker intends to fulfill the
threat, because upon its utterance, the government has the right, if not the duty, to protect[ ] individuals from the
fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will
occur. United States v. Jeffries, 692 F.3d 473, 478 (6th Cir.2012) (quoting R.A.V., 505 U.S. at
388) (citing Chaplinsky, 315 U.S. at 568 and White, 670 F.3d at 507); see also Black, 538 U.S. at
359 (quoting R.A.V., 505 U.S. at 388); United States v. Turner, 720 F.3d 411, 420 (2d
Cir.2013) (quoting Black, 538 U.S. at 360)).
(a) Legal Standard
*42 As the Magistrate Judge aptly observed, the relevant precedents regarding true threats are somewhat limited
due to the unique circumstances presented in this case. Mag. Judge Order 43, ECF No. 98. Indeed, although
several courts, including the Fourth Circuit Court of Appeals, have considered this exception to the First
Amendment, the fact remains that [t]he majority of cases ... regarding the interpretation and application of true
threats' relate to the criminal prosecution of an accused[, including White,] under a variety of federal statutes
proscribing threats of harm communicated directly or indirectly to recipients or through various channels of
communication. Id. The Magistrate Judge thoroughly reviewed a number of such representative cases, which
included prosecutions under 18 U.S.C. 875,
63
criminalizing the interstate communication of threats by telephone,
mail, email, or the Internet; 18 U.S.C. 876,
64
criminalizing threats delivered by mail expressing the intent to
kidnap or injure; 18 U.S.C. 871,
65
criminalizing threats to harm the President of the United States; and 18 U.S.C.
115,
66
criminalizing threats to law enforcement personnel or federal judges. In addition to the wide range of
federal prosecutions reviewed by the Magistrate Judge, this Court observes that the law concerning true threats
has also developed in prosecutions under various state laws. See, e.g., Black, 538 U.S. at 348, 35863(discussing
whether the act of cross burning with the intent to intimidate, as prohibited by Virginia Code 18.2423,
constituted a prescribable true threat); United States v. Tan Duc Nguyen, 673 F.3d 1259, 1266 (9th
Cir.2012) (considering the contents and targeted mailing of a letter to foreign-born voters as evidence that it may
have constituted a true threat subject to regulation under a California statute prohibiting intentional acts of voter
intimidation); Yawili v. California, No. 2:10cv2867, 2012 WL 1552424, at *5 (E.D.Cal. Apr.30, 2012) (holding that a
petitioner for federal habeas relief failed to show that his conviction under 422 of the California Penal
Code violated the First Amendment, because the statute criminalized true threats to commit crimes that will result
in death or great bodily injury).
Although the majority of cases defining and interpreting the true threat exception to the First Amendment arise in
criminal prosecutions, others have analyzed the exception in the civil context, most often in suits involving student
or prisoner speech. See, e.g., Doe v. Pulaski Cnty. Special Sch. Dist., 306 F.3d 616, 62127 (8th
Cir.2002) (reversing a district court's decision to void a student's expulsion based on a finding that the student's
communication to his classmate, which repeatedly used derogatory epithets to describe her and expressed his
desire to sodomize, rape, and kill her, constituted a prescribable true threat); D.J.M. ex rel P.M. v. Hanniblal Pub.
Sch. Dist. No. 60, 647 F.3d 754, 76065 (8th Cir.2011) (affirming the district court's partial grant of summary
judgment on a student's 42 U.S.C. 1983 action because the student's statements on instant messaging about his
desire to obtain a gun to shoot himself and others were true threats and, therefore, not protected speech under
the First Amendment); Torres v. Clark, No. 123997, 2013 WL 1409327, at *12 (3d Cir.2013) (unpublished table
decision) (holding that a prisoner's intercepted letter, which included a statement that if a correctional officer
keeps acting like he is above policy/law somebody is going to break his jaw is what I assume?! constituted a
proscribable true threat); In re Parmelee, 115 Wash.App. 273, 63 P.3d 800, 80708 (Wash.Ct.App. Feb.3,
2003) (holding that a prisoner's grievance calling an officer a prick and a shithead and demanding he be fired
before his attitude gets him fucked up constituted a proscribable true threat).
67
Other cases have considered the
exception's application in civil rights of action and to remedies created under federal law. See, e.g., Planned
Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists et al., 290 F.3d 1058, 1077 (9th
Cir.2002) (determiningin the context of a private right of action under the Freedom of Access to Clinics
Entrances Act (FACE), 18 U.S.C. 248that the statutory term threat of force means what our settled threats
law says a true threat is and, accordingly that threatening statements violating FACE are unprotected under the
First Amendment);Carmichael, 326 F.Supp.2d at 12791290 (declining to issue a temporary restraining order, as
provided for by 18 U.S.C. 1512 and1514, because the respondent's operation of a website including the
photographs and personal identifying information of government witnesses in a criminal prosecution was not a
true threat and the respondent's First Amendment interest in the website outweighed the Government's proffered
interests in preserving the jury pool and protecting witnesses).
*43 Despite the numerous and extensive discussions of the true threat exception, no case, of which this Court is
aware, has applied that exception to a request for sanctions such as that presented by the unique circumstances
here. However, in conducting its review of the representative case law, this Court can identify several general
principles instructive to the analysis at hand. Accordingly, as did the Magistrate Judge, this Court considers the
guidance provided by the Fourth Circuit and other courts concerning true threats, to determine the status of
White's postings under that exception to the First Amendment. In so doing, the Court observes that, although
there is considerably less authority on the subject, it is reasonable to assume that those speech acts which the
government may criminally prosecute with little or no concern for the First Amendment, the government may
likewise subject to civil penalty or make subject to private causes of action. Rice v. Paladin Enterps., Inc., 128
F.3d 233, 24647 (4th Cir.1997) (discussing the incitement exception, as defined in Brandenburg, in the context of
a private right of action for aiding and abetting wrongful death against the publisher of a manual instructing readers
on how to be a hit man, albeit in light of several damaging stipulations concerning the publisher's intent in
marketing the book); accord id. at 248 ([T]he First Amendment might well (and presumably would) interpose the
same or similar limitations upon the imposition of civil liability for abstract advocacy, without more, that it interposes
on the imposition of criminal punishment for such advocacy.).
The various circuit courts of appeal have developed two objective theories for determining whether a
communication rises to the level of a prescribable true threat. The majority, including the Fourth Circuit, have
adopted a reasonable recipient or reasonable listener test, in which a court considers whether a reasonable
recipient familiar with the context would understand the statement to be a serious expression of an intent to do
harm to the recipient. White, 670 F.3d at 509 (emphasis in original) (quoting Black, 538 U.S. at
359); e.g., Turner, 730 F.3d at 420; United States v. Williams, 690 F.3d 1056, 1066 (8th Cir.2012) (quoting United
States v. Mabie, 663 F.3d 322, 332 (8th Cir.2011)); Jeffries, 692 F.3d at 478, 480; United States v.
Nishnianidze, 342 F.3d 6, 15 (1st Cir.2003);United States v. Morales, 272 F.3d 284, 287 (5th Cir.2001). Other
circuits have adopted a reasonable speaker test, in which a communication is considered a true threat if a
reasonable person, familiar with the context of the communication, would foresee that it would be interpreted as an
expression of an intent to harm. E.g., Planned Parenthood, 290 F.3d at 1074 n. 7; United States v. Whiffen, 121
F.3d 18, 2021 (1st Cir.1997); United States v. Kosma, 951 F.2d 549, 55657 (3d Cir.1991); United States v.
Khorrami,895 F.2d 1186, 119293 (7th Cir.1990) (citing United States v. Hoffman, 806 F.2d 703, 707 (7th
Cir.1986)). The difference between these two approaches is not significant, because all [circuits] consider context,
including the effect of an allegedly threatening statement on the listener. Planned Parenthood, 290 F.3d at 1074 n.
7; accord United States v. Alaboud, 347 F.3d 1293, 1297 n. 3 (11th Cir.2003) (citing Jennifer Rothman, Freedom
of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283, 303 (2001)) (noting that the Eleventh Circuit has not
specified whether the listener-based or speaker-based approach should apply because [b]oth tests are
basically a listener-based test in that, even under the latter approach the jury would have to decide how a
reasonable listener would understand the communication in order to determine how a reasonable speaker would
foresee the effect of his or her communication).
*44 In its most recent discussion of true threats, the Fourth Circuit affirmed the application of the reasonable
recipient test in this Circuit. Accordingly, when determining whether White's postings in this case are prescribable
true threats subject to sanctions under the Court's inherent power, the Court considers, as the Fourth Circuit did
in the cross-appeals from his separate convictions and post-judgment acquittal in the Western District of Virginia,
whether a reasonable recipient familiar with the context would understand his writings to be a serious
expression of an intent to do harm to the recipient.
68
White, 670 F.3d at 509; accord United States v. Armel, 585
F.3d 182, 185 (4th Cir.2009) (quoting United States v. Roberts, 915 F.2d 889, 891 (4th Cir.1990) (holding that
statement is a true threat if an ordinary reasonable recipient who is familiar with the context ... would interpret [it]
as a threat of injury ). Under this objective inquiry, [t]he speaker need not actually intend to carry out the
threat, Black, 538 U.S. at 35960, nor must he subjectively intend to threaten the recipient, see, e.g., White, 670
F.3d at 50809 (interpreting the Supreme Court's definition of true threats in Black to require only that the
speaker intend to communicate a threat and, accordingly, rejecting White's contention thatBlack requires the
speaker to specifically intend to threaten); United States v. Hicklas, 713 F.3d 435, 43940 (8th
Cir.2013) (same);Jeffries, 692 F.3d at 47980 (same).
69
Furthermore, a statement may qualify as a [true] threat
even if it is never communicated to the victim. United States v. Spring, 305 F.3d 276, 28081 (4th
Cir.2002) (citing United States v. Patillo, 431 F.2d 293, 29596 (4th Cir.1970)); cf. United States v. Lockhart, 382
F.3d 447, 45152 (4th Cir.2004) (concluding that a defendant's letter to a Food Lion manager was a true threat
against the President of the United States, in violation of 18 U.S.C. 871(a), without regard to the fact that the
President never received the letter). Thus, it is not always necessary that the intended victim actually be
intimidated or threatened by the communication. Mag. Judge Order 50, ECF No. 98. As the Magistrate Judge
aptly observed, under the relevant precedents, the mere communication of a true threat, with the intent to transmit
the communication, is sufficient to establish the accused's guilt under the various federal statutes. Mag. Judge
Order 50; see also White, 670 F.3d at 509. [W]hether the statement amounts to a true threat is, of course,
determined by the understanding of a reasonable recipient familiar with the context. White,670 F.3d at 509.
Courts, in both criminal and civil cases, have looked to a variety of factors when determining how a reasonable
recipient would view [a] purported threat. Doe, 306 F.3d at 624 (citing United States v. Dinwiddie, 76 F.3d 913,
925 (8th Cir.1996)). These factors stem from the Supreme Court's decision in Watts. In that case, the accused, an
anti-Vietnam war protester, stated at a public rally in Washington, D.C. that [i]f they ever make me carry a rifle the
first man I want to get in my sights is L.B.J., that is, then-President Lyndon Baines Johnson. Watts, 394 U.S. at
706. Based on this statement, Watts was prosecuted and convicted under 18 U.S.C. 871, which criminalizes
threats of harm against the President of the United States. The Supreme Court reversed, holding that Watts'
speech was not a threat. Id. at 708. In so doing, the Court recognized the fundamental distinction between
constitutionally protected speech and true threats, observing that the context of the communication is essential to
determine whether it is protected by the First Amendment. Id. at 70708. From the enunciation and application of
these bedrock principles, courts (including the Fourth Circuit) have identified certain contextual factors relevant to
the analysis of allegedly threatening remarks. See Mag. Judge Order 54, ECF No. 98; see also United States v.
Bly, 510 F.3d 453, 459 (4th Cir.2007); Doe, 306 F.3d at 623; Carmichael, 326 F.Supp.2d at 1281.
*45 First and most critically, courts consider the language itself. See, e.g., Watts, 394 U.S. at 708 (discussing the
conditional nature of Watts' purported threat); White, 670 F.3d at 512 (finding that White's email to Petsche
constituted a true threat because it specifically threatened certain actions if Petsche did not respond to his
demands and concluded by comparing Petsche to Judge Lefkow); Bly, 510 F.3d at 459 (finding a true threat
where Bly's communications implicitly and explicitly promised violent retribution if he did not receive the result he
sought); Carmichael, 326 F.Supp.2d at 128182; cf. United States v. Maxton, 940 F.2d 103, 106 (4th
Cir.1991) (noting that the intent required to find a true threat can often be gleaned from the very nature of the
words used in the communication). However, in considering the language used, a court is not bound by a literal or
close syntactical analysis of the purported threat. Turner, 720 F.3d at 422. Indeed, at least one circuit has
expressly counseled against a rigid adherence to the literal meaning of a communication without regard to [the]
reasonable connotations derived from its ambience. Id. (quoting United States v. Malik, 16 F.3d 45, 50 (2d
Cir.1994)) (internal quotation marks omitted). Thus, after reviewing the alleged threat, courts next consider the
context in which it was made, including not only the forum in which the statement was communicated, but also the
reaction of the audience upon its utterance. See, e.g., Watts, 394 U.S. at 70708 (noting that Watts' statements
were made at a public gathering, on a topic of great national interest and debate, and that the audience reacted
with laughter, not fear); White, 670 F.3d at 51213(considering the seriousness with which the recipient and law
enforcement took White's statements concerning Petsche and Kerr and, with respect to Kerr, the fact that such
statements occurred in the context of White's public opposition to the University of Delaware's diversity
program); United States v. Lockhart, 382 F.3d 447, 45152 (4th Cir.2004) (reviewing the defendant's actions in
delivering a purportedly threatening letter to the manager of a Food Lion and observing that she gave the letter in
a serious manner without suggesting it was meant in jest and that nothing in her actions suggest[s] she intended
to engage in political discourse);Doe, 306 F.3d at 623 (listing several contextual factors, including the reaction of
those who heard the alleged threat, the speaker's history (if any) of threatening the recipient, and whether the
recipient had reason to believe that the speaker was prone to violence). Finally, in reviewing the full context, courts
consider whether the purported threat was communicated directly to the putative victim.See, e.g., White, 670 F.3d
at 513 (observing that direct communication and personal or group involvement in the threat are not an essential
component[s] to finding a true threat, [but that] the lack of both, in context, prevented a finding that a reasonable
recipient would understand White's Warman postings to be serious expressions of intent to commit
harm); Doe, 306 F.3d at 623 (noting direct communication as one of the relevant factors to a true threat analysis).
(b) Development of the True Threat Exception in the Fourth Circuit
*46 The Fourth Circuit has considered the application of these contextual factors in a number of cases, the most
recent of which involved those communications authored by White that formed the basis for his prosecution in the
Western District of Virginia. See White, 670 F.3d at 50206 (summarizing the subject writings). The Court reviews
several of these decisions before proceeding to its analysis of the postings at issue.
First, in United States v. Cooper, 865 F.2d 83 (4th Cir.1989), the Fourth Circuit reviewed a defendant's conviction
under 18 U.S.C. 878, which criminalizes threats against foreign officials. Id. at 84. The defendant in that case
had made two statements to government agents concerning India's Prime Minister, Rajiv Gandhi. First, the
defendant telephoned a Secret Service agent and made some threatening statements about Gandhi but said that
he would attempt to kill Gandhi only if the C.I.A. provided him with funds and that, with C.I.A. funding, he would
attempt an assassination outside of the United States. Id. at 84. This statement did not form the basis for his
conviction, as the charge was dismissed because it was clearly conditional [ ] and its premise [was] absurd. Id. at
85. The defendant was prosecuted and convicted based on a second statement to an official attached to the Office
of the Joint Chiefs of Staff at the Pentagon. Id. at 84. The defendant telephoned this official and stated that the
Secret Service had given him $50,000 to blow Gandhi's brains out and that he had scoped out four areas in D.C.
to blow [Gandhi's] brains out. Id. This official testified that he thought the defendant's statements were made in a
serious vein and not in jest, although he acknowledged that he did not believe that the Secret Service would assist
in a potential assassination of the Prime Minister. Id. at 8485. On appeal, the defendant argued that his speech
was not a threat punishable under 878. Id. at 85. After reviewing the Supreme Court's analysis in Watts, the
Fourth Circuit held that the statement was a punishable threat because the defendant claimed that he had selected
four potential assassination sites in the District of Columbia and because such claim was made in the context of
his freely expressed opposition to Gandhi and evidence that he had recently attended a gun show.
70
Id.
After the Supreme Court's 2003 decision in Black, the Fourth Circuit revisited the true threats exception in a
series of cases. InLockhart, a job applicant was prosecuted under 18 U.S.C. 871 for making threats against then-
President George W. Bush. 382 F.3d at 449. After approaching a Food Lion manager about available positions,
the applicant handed a letter to the manager as she was leaving that stated, If George Bush refuses to see the
truth and uphold the Constitution I will personally put a bullet in his head. Id.The Fourth Circuit held that the
accused's conduct, when considered in the entire context, constituted a true threat distinguishable from the
statements considered in Watts. Id. at 452. Using Watts and its prior decision in Cooper as benchmarks, the court
considered several contextual factors in evaluating the status of the applicant's letter. Reviewing the language
itself, the court found nothing in [the letter's] contents that signale[d] it [wa]s intended to be a joke. Id. The court
also noted that the applicant gave the letter to the Food Lion manager, whom she did not know before entering
the store, in a serious manner without suggesting it was meant as jest. Id. The court found that, although the
letter contain[ed] political statements, the manner in which it was delivered was factually distinguishable from
Watts' public speech at a political rally. Id. Finally, the court observed that the applicant's threat [wa]s not
conditional in the same manner as the threat in Watts, which was expressly conditioned on the speaker's being
drafted into the United States Armed Forces. Id. (citing Watts, 394 U.S. at 708). Rather, while her statements
concerning President Bush were grammatically conditional, the court found that nothing in her letter indicate[d]
what events or circumstances would prevent the threat from being carried out. Id. In light of the applicant's
language and the context surrounding that language, the court concluded that her letter could not be considered
either legitimate political hyperbole or jest and that it was, therefore, a true threat not protected by the First
Amendment. Id.
*47 The Fourth Circuit revisited the true threat exception three years later in Bly, which involved a criminal
prosecution under 18 U.S.C. 876 for mailing threatening communications. 510 F.3d at 45556. In that case, a
former doctoral candidate at the University of Virginia (UVA) sent several threatening communications via mail
and email to various UVA officials, claiming that UVA personnel had plagiarized his work and treated him
unfairly. Id. at 456. Included in these communications were statements regarding the candidate's intent to seek
redress outside legal channels, including the observations that bullets are far cheaper and much more decisive
and that [a] person with my meager means and abilities can stand at a distance of two football fields and end
elements of long standing dispute with the twitch of my index finger. Id. In addition to such statements, the
candidate sent copies of firearms practice targets with bullet holes near their centers to give[ ] evidence of a talent
I possess for gun controlhitting the target. Id.Following the district court's refusal to dismiss the portion of the
indictment charging him with violating 876, the candidate entered a conditional guilty plea. Id. at 455. On appeal,
he claimed that his statements were constitutionally protected political hyperbole, and not an unprotected true
threat to injure. Id. at 457. The Fourth Circuit reviewed the contextual factors from Watts and then,
usingWatts and Lockhart as benchmarks, concluded that the candidate's speech was not protected by the First
Amendment. Id. at 459. In so holding, the court found the candidate's statements to be more akin to those made
in Lockhart. Id. Unlike in Watts, the [communication] was not addressed to a public audience and, as
in Lockhart, it was delivered privately to specific individuals. Id.Additionally, like the letter in Lockhart, the
candidate's statements were only grammatically conditional, in that they both implicitly and explicitly promised
violent retribution if [the candidate] did not receive the result he sought, but did not provide the reader any
indication as to what measure of justice would appease [him]. Id.
The Fourth Circuit most recently considered the true threats exception in White, which affirmed the district court's
post-judgment rulings as to White's four counts of conviction in the Western District of Virginia. White, 670 F.3d at
501. This Court finds White to be particularly instructive to its analysis because, there, the Fourth Circuit was
required to consider several examples of allegedly threatening Internet postings and emails, all of which were
authored by the respondent here, White.
71
Having reviewed the factual background of White's convictions in detail
above, the Court considers the Fourth Circuit's determinations as to whether the postings in that case amounted to
true threats excluded from First Amendment Protection.
*48 In White, the court reviewed White's convictions and post-judgment acquittal under 18 U.S.C. 875, which
criminalizes the interstate transmission of communications threatening injury.
72
670 F.3d at 507. Considering
White's language and several contextual factors, the Fourth Circuit held that White's communications to Petsche
and Kerr were true threats sufficient to support his convictions on Counts One and Five. Id. at 51213. Regarding
his interactions with Petsche, the court considered evidence that White had paid money to locate a large amount
of personal information about [her] and that he had expressly advised her of that fact. Id. at 512. The court also
noted that White's email to Petsche specifically threatened to act if Petsche did not respond quickly, concluding
... by comparing Petsche to Judge Lefkow, whose relatives had been murdered. Id. at 512. The court held that
[a]ny reasonable recipient of [such an] email would have taken it as a threat of violence. Id. (citing United States
v. Floyd, 458 U.S. 844, 84950 (8th Cir.2006)). Finally, the court considered the reaction that White's email
generated, observing that Petsche, as well as other Citibank employees, security officers, and law enforcement
officers took White's email as a serious threat, which provid[ed] corroborating evidence of how the threat would
be taken by a reasonable person. Id. (citing United States v. Roberts, 915 F.2d 889, 891 (4th Cir.1990)).
Regarding White's communications with and concerning Kerr, the court considered the fact that White had called
[her] office and left a message that people who thought the way that [she] did were hunted down and shot. Id. at
513 (emphasis in original). Additionally, White's delivery of the message carried a serious tone and was taken
seriously. Id. Kerr, her husband, the officials at Delaware University, and law enforcement agencies took the call,
in the context of White's public opposition to Delaware's program, to be a serious expression of intent to harm
Kerr. Id. Again, the court concluded that these reactions provid[ed] corroborating evidence of how the threat
would be taken by a reasonable recipient familiar with the context. Id.
After affirming White's convictions on Counts One and Five, the court considered his postings about Warman,
concluding that the two communications that formed the basis of Count Six did not amount to proscribable true
threats. White, 670 F.3d at 513. In so holding, the court observed that, although the two postings called for
someone to kill Richard Warman, neither actually provided a threat from White that expressed an intent to kill
Warman. Id. The court acknowledged that such a direct threat is not required and, indeed, that a direction to
others to kill Warman, could have been sufficient, if White had some control over those other persons or if
White's violent commands in the past had predictably been carried out. Id. However, the court found no evidence
of such context before it. Id. Accordingly, White's call to others was protected as political hyperbole, like the
speech in Watts, because it was not directed to members of White's organization, but was instead posted to neo-
Nazi websites directed to the public generally. Id. In the same vein, although there was evidence that White had
previously contacted him, the court emphasized that neither of the charged communications were sent directly to
Warman. Id. The court summarized its view of the relevant postings as follows: [T]he communications that formed
the basis of Count [Six] were expressions not directed to Warman but to the public generally and did not
communicate an intent to take any action whatsoever. Id. Accordingly, they fell short of being true threats. Id.
*49 After so holding, the court addressed several of the government's arguments in support of their position that
White's postings about Warman were not protected under the First Amendment. The court first observed that:
While the government is correct that neither direct communication nor personal or group involvement in the threat
is an essential component to finding a true threat, the lack of both, along with the fact that White's language was
clearly directed to others in the form of advocacy, makes it impossible for us to conclude that a reasonable
recipient would understand White's communications to be serious expression of intent to commit harm.
Id. (emphasis in original). The court next rejected the government's contention that the context in which White's
statements were made elevates the [m] and makes up for the lack of a direct threat to commit harm. Id. Although
the government had offered numerous examples of White's communications directly and indirectly to Richard
Warman
73
as evidence of his protracted campaign to oppose Warman's work in Canada, fighting neo-Nazi and
white supremacy groups, the court concluded that such context was not enough to transform White's statements
into true threats. Id. at 513, 514. The principal message expressed in [his] communications was that someone
else should kill Warman. Id. at 514. Although such statements and the context in which they were made may
have undoubtedly frightened Warman, those communications at most conveyed a serious desire that Warman be
harmed by others but did not convey a serious expression of intent to do harm from the perspective of a
reasonable recipient. Id.Based on its review of the language and context of White's Warman postings, the Fourth
Circuit affirmed the district court's judgment of acquittal on Count Six. Id.
Guided by the general principles identified and reviewed above, as well as by the Fourth Circuit's application of
those principles, the Court considers whether White's postings in this matter amount to unprotected true threats.
(c) Analysis
As reviewed in detail above, White authored a number of communications in the early months of 2008which he
publicly posted or otherwise distributed on the Internetthat Intervening Plaintiffs contend support an award of
sanctions against him under the Court's inherent power. See supra Part II.F. The Court need not repeat these
postings in full here, but instead, discusses them in light of the contextual factors, established in Watts and
consistently applied in the Fourth Circuit (and elsewhere), to determine whether such communications are true
threats outside the scope of First Amendment protection.
(i) Language
The Court looks first to the language of White's various communications. See, e.g., Watts, 394 U.S. at 707
08; White, 670 F.3d at 512; Carmichael, 326 F.Supp.2d at 1281. Despite White's repeated and extensive
commentary on the underlying litigation, generally, and on counsel, specifically, the Court finds little in the
language of the postings themselves to support a finding that they are prescribable true threats.
*50 None of the relevant postings expressly threatens unlawful harm to Mottley. Indeed, the only directly
threatening language expresses White's desire and intent to file suit against Mottley based on what White
considered his unlawful issuance of the disputed subpoenas during the underlying litigation. E.g., PreHr'g Reply
Br. Ex. B, ECF No. 673 ([I]f I have anything to say about, we're going to sue [Mottely] and his law firm under a
precedent he established for filing subpoenas without cause and recoup all of this money in the end.); PreHr'g
Br. in Opp'n Ex. A, ECF No. 592 (I know [Mottley and his firm] are wasting thousands of dollars of our money,
but we can be patient and deal with them legally.); PreHr'g Supplemental Br. Ex. A, ECF No. 552 (I actively
hope that this concludes with them being sued into oblivion, paying me a large judgment, and never having
anything happen to them upon which they hang a legitimate complaint.). The threat to instigate litigation, and
thereby invoke constitutionally prescribed powers and processes, is not akin to any true threat of which this Court
is aware. Cf. Black, 538 U.S. at 359 (defining a true threat as a statement including a serious expression of an
intent to commit an act of unlawful violence to a particular individual or group of individuals (emphasis added)).
On this question, White's postings are clearly distinguishable from those communications that the Fourth Circuit
has previously categorized as true threats. Nowhere did White expressly threaten injury to Mottley, conditional or
otherwise. Thus, his postings are not akin to the statements considered in Cooper, Lockhart, and Bly, in which
each of the speakers expressed his or her intention to shoot the object of the threat. Bly, 510 F.3d at
456; Lockhart, 382 F.3d at 449; Cooper, 865 F.2d at 84. Nor are they comparable to White's statements to
Petsche, in which he specifically threatened to act if she did not promptly respond to his request, suggesting
through his comparison of Petsche to Judge Lefkow that such action would necessarily be violent. White, 670 F.3d
at 512. Although White similarly referenced Judge Lefkow in his lengthy February 28, 2008 email to counsel, such
reference was not made in connection with an express threat of action, as it was in his email to
Petsche.
74
See PreHr'g Supplemental Br. Ex. A, ECF No. 552 (referencing Judge Lefkow in a discussion of
tactics and practices specifically and repeatedly disclaimed throughout the email). Furthermore, despite
Intervening Plaintiffs' contention that White's use of words like noose and open game in his February 22, 2008
postings demonstrate his expression of a threat to inflict bodily harm on Mottley, White's language in that posting is
clearly distinguishable from his true threat to Kerr, in which he stated that people who thought the way that Kerr
thought were hunted down and shot. White, 670 F.3d at 513 (emphasis in original). Whatever the cited terms
connote in this case, they do not express a direct and specific threat of physical violence.
*51 As the Magistrate Judge observed, any arguably threatening language used by White was indirect, at best.
Mag. Judge Order 47, ECF No. 98. Reviewing White's various postings in light of the relevant benchmarks, and
particularly with reference to the Fourth Circuit's decision respecting his convictions in the Western District of
Virginia, the Court finds that White's statements do not suggest an indirect or implied true threat of unlawful
violence. See Black, 538 U.S. at 359.
In reaching this conclusion, the Court looks primarily to the Fourth Circuit's discussion of White's postings about
Richard Warman, in which he expressly called for someone to Kill Richard Warman, included Warman's home
address, and directed readers to [f]ind him at home and let him know you agree. White, 670 F.3d at 50506. The
Court finds this analysis particularly instructive in light of the similarities between Warman and Mottley. Both are
attorneys who, to varying degrees, have assisted civil rights litigants in obtaining relief through the mechanisms
provided by their respective legal systems and, in doing so, became targets of White's ire.See id. at 505. Indeed,
White's expression of his views regarding both men is strikingly similar, although, in Warman's case, much more
menacing. See id. As he apparently did with respect to Warman, White repeatedly and publicly criticized Mottley
for his involvement in the underlying litigation, his conduct toward White, and his reactions to White's online
commentary of the same. SeeWhite, 670 F.3d at 50506. Unlike the majority of White's postings about Warman
(which repeatedly call[ed] for his assassination and post[ed] his home address), White's criticisms of Mottley
rarely expressed even a veiled desire that action be taken against him and seldom included his personal contact
information. Id. at 505. Indeed, only one communication of which this Court is aware paired any suggestion of
potentially unlawful action with Mottley's personal, identifying information, that is, the February 22, 2008 posting
upon which Intervening Plaintiffs' Motion for Sanctions was initially based. See PreHr'g Br. in Opp'n Ex. A, ECF
No. 592.
That posting directed readers not
75
to take a series of nonviolent actions against Mottley, such as draining his
bank account or misusing his Social Security number, and suggested that Mottley and his wife were open game
after the subpoena dispute concluded. Id. Most troublingly, the post included Mottley's home address and his
telephone number. Id. Although certainly ill-advised, inappropriate, and reprehensible, the Court concludes that the
language used in this communication does not rise to the level of a true threat. If repeated demands for
Warman's murder made in the same manner and to the same websites as White's posting about Mottley, do not
constitute a true threat, White's veiled encouragement of the actions specified in his February 22, 2008 postings
cannot be viewed as such a prescribable threat, even though the posting included references to nooses and
open game. Id. at 51314. While such terms, in the proper context might connote a threat of violence, they do not
do so here, in light of the language of the entire posting, especially as compared to White's similar writings about
Warman, Accordingly, the language of this initial posting suggests that it is not a true threat beyond the ambit of
constitutional protection.
*52 For the same reasons, the Court finds that White's August 16, 2008 Funny Games posting to Overthrow.com
is not indicative of a true threat. Indeed, although this posting certainly connoted some suggestion of violence
through its comparison of Mottley and his wife to the family depicted in the movie, like White's Warman postings, it
at most conveyed a serious desire that [Mottley] be harmed by others and not a serious expression of [White's]
intent to do harm from the perspective of a reasonable recipient. Id. at 514 (emphases in original). White's
language, although troubling, is again strikingly similar to his protected Warman postings.Compare Br. in Supp. of
Obj. Ex. A, ECF No. 1042 (drawing the above noted comparison and asking, Anyone think I'm off base with
that?) with White, 670 F.3d at 505 (stating that Warman must be killed and suggesting readers [f]ind him at
home and let him know you agree). Unlike his statements about Warman, however, White's Funny Games
posting did not include any personal, identifying information for Mottley or his wife. In light of the protected status of
White's Warman postings, which contained such information and more express demands for violence, the Court
finds that the language of White's final posting to Overthrow.com does not indicate a true threat.
Reviewing the remaining postings at issue, the Court finds that none contain a serious expression of either an
intent to harm Mottley or even a desire that others harm him. See White, 670 F.3d at 514. However, because the
various postings include several troubling statements, the Court explains why such statements do not suggest a
true threat in this case.
First, and perhaps most disconcerting, is White's republication of Mottley's personal, identifying contact information
in his substantively identical April 2008 postings to Overthrow.com. See PostHr'g Supplemental Br. in Supp. Ex.
A, ECF No. 762; see also Mag. Judge Order 28 & n.34, ECF No. 98. As the Magistrate Judge rightly emphasized
at the February 28, 2008 hearing, the publication of such information is potentially dangerous and intimidating
and, when done in the context of litigation, is of great concern to the Court given the possible effect on the safety
of counsel. Hr'g Tr. 75, Feb. 28, 2008. However, considering the language of the April 2008 postings that
contained this information, the Court finds nothing to suggest that they express an intent to harm Mottley or a
desire that others harm him. Although White certainly disparaged Mottley for his reaction to White's prior writings,
he did not recommend any act[s] of unlawful violence. Black, 538 U.S. at 359. Indeed, he specifically and, in the
Court's view, forcefully directed readers not to threaten, harass, or commit crimes against Mottley. PostHr'g
Supplemental Br. in Supp. Ex. A, ECF No. 762. Thus, although the Court finds the republication of Mottley's
personal, identifying information repugnant, based on the language of the postings it was not apparently
unlawful. See Sheehan v. Gregoire, 272 F.Supp.2d 1135, 1142 (W.D.Wash.2003)(citing Bartnicki v. Vopper, 532
U.S. 514, 527, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001)) (Defendant cites no authority for the proposition that
truthful lawfully-obtained, publicly-available personal identifying information constitutes a mode of constitutionally
prescribable speech. Rather, disclosing and publishing information obtained elsewhere is precisely the kind of
speech that the First Amendment protects.).
76
Compare Carmichael, 326 F.Supp.2d at 1281 (concluding that the
language of the defendant's website, which included the photographs and personal contact information for the
government's witnesses against him d[id] not make out a threat when read in full because the site actually
disclaim[ed] any intent to threaten, making it appear to be just what [the defendant] maintained) with Turner, 720
F.3d 42122 (concluding that the defendant's blog post was a true threat because in it he not only wrote that ...
three judges should be killed but also included detailed directions to the courthouse and a serious reference to the
murders of Judge Lefkow's family, one that suggested a causal connection between such murders and his prior
writings).
*53 Although no other writings included Mottley's personal, identifying information, at least one included
statements that, in the proper context could be viewed as unlawfully threatening. Specifically, in his lengthy
February 28, 2008 email, which he copied to both Mottley and Brown, White included a reference to Judge Lefkow,
whose family was tragically murdered in apparent retribution for her decision in a prior case. PreHr'g
Supplemental Br. Ex. A, ECF No. 552. In pertinent part, White wrote:
As Mottley has gotten nastier and nastier, and sunk deeper into this delusionary alternate reality he's created
around this case, I've seen his efforts could quickly balloon into the kind of nastiness that draws an Anonymous
response. As we all know, from the Anonymous perspective, someone becomes open game the moment they
stick their head up; a lot of people don't even stick their head up, but become targets just at random as people
browse the web. I remember what happened to Joan Lefkow, for instance, and know what the segment of
Anonymous which thinks its capable of helping is capable of doing.
Particularly, I could see agitated ANSWP fans who are not members and not under my control in any way deciding
to help, [sic] as they have when they have mailed nooses to black leaders or kidnapped members of Jewish
groups, going after this attorney with some Anonymous tactics that would do nothing but hurt our position. In
response to that possibility, I posted my somewhat humorous and mostly serious admonition not to harass him. I
think anyone familiar with my writings could understand what I meant when I made that post. I cannot imagine
anyone interpreted it as a command to kill him after the trial, kill him after a specific hearing, or commit any
specific crime against him.
Id. It is true that, in the proper context, an invocation of the tragedy that befell Judge Lefkow can constitute a true
threat. Indeed, the Fourth Circuit so held with respect to White's inclusion of such a reference in his email to
Petsche. White, 670 F.3d at 512. That email, however, is distinguishable from White's statements here because
the reference was included in a specific threat to harm Petsche if she did not respond to White's demands. Id. No
such specific threat appears anywhere in White's February 28, 2008 communication.
In a more analogous case, the Second Circuit recently held that an individual's blog postin which he advocated
the murder of three Seventh Circuit judges and invoked the actual acts of violence carried out in apparent
retribution for [Judge Lefkow's] decision in a prior casewould clearly allow a reasonable juror to conclude that
[such] statements were a true threat. Turner, 720 F.3d at 42122. In so holding, the court emphasized the fact
that the speaker not only referenced Judge Lefkow, but that he then publicly implied a causal connection
between his blog posting calling for her death and the actual murders. Id. at 422. Thus, the entire language of
Turner's posting, when viewed in context, supplied abundant evidence from which to conclude that [he] was
threatening judges in retaliation for their ruling, rather than engaging in mere political hyperbole. Id. Here, the full
text of White's February 28, 2008 email does not compel the same conclusion. Unlike the blog post
in Turner, White's discussion of Judge Lefkow is included in a larger description of actors and actions that he
repeatedly and strongly disavows. PreHr'g Supplemental Br. Ex. A, ECF No. 552. Indeed, far from implying a
causal connection between his prior writings and the murders of Judge Lefkow's family, White specifically
disclaims and condemns any association with those members of Anonymous he views as responsible for such
acts. When viewed in light of the surrounding language threatening to expel any ANSWP member who violates the
law, White's email is clearly distinguishable from the prescribable blog post in Turner.
*54 For the above reasons, the Court finds that the language of White's various postings and emails does not,
alone, rise to the level of a true threat. The majority of such writings lack any discernible threats and, instead, are
replete with criticisms of Mottley based on his involvement in the underlying litigation, which arguably implicate[d]
highly controversial social issues. Mag. Judge Order 59, ECF No. 98. Thus, the language of the postings
themselves are indicative of White's intent to engage in political or social discourse.See Lockhart, 382 F.3d at 452.
Such hyperbole would appear, under the relevant precedents, to fall within the scope of the First Amendment's
stringent protections. See, e.g., Watts, 394 U.S. at 708 (noting the profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide open even when that speech includes
vehement, caustic, and sometimes unpleasantly sharp attacks (quoting Sullivan, 376 U.S. at 270) (internal
quotation marks omitted)); Turner, 720 F.3d at 420 (We have no doubt that Turner was constitutionally entitled to
condemn and disparage the Seventh Circuit.); White, 670 F.3d at 51314 (discussing White's Warman postings).
However, to conclusively determine whether White's postings amount to prescribable true threat, the Court must
consider the context in which such statements were made.
Before considering the several, relevant contextual factors, the Court briefly addresses Intervening Plaintiffs'
argument that true threats are not limited to threats of physical violence, but also include threats intended to instill
a fear of harm to the recipient's property. PostRemand Br. in Supp. of Obj. 33, ECF No. 152. The Court finds this
argument to be contrary to the Supreme Court's plain language in Black, which defined true threats as those
statements where the speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals. Black, 538 U.S. at 359(emphasis added).
Although the Supreme Court did, as Intervening Plaintiffs argue, observe that [i]ntimidation ... is a type of true
threat whereby the speaker communicates such a threat with the specific intent to instill fear of bodily harm or
death, id. at 360,such observation does not broaden the underlying definition of a true threat as Intervening
Plaintiffs so contend. Indeed, in specifically rejecting White's argument that Black requires the speaker to
specifically intend to threaten the victim, the Fourth Circuit emphasized that the discussion of such intent (and,
accordingly, of intimidation as a type of true threat) occurred in the context of a Virginia statute making it a crime
to burn a cross with the [specific] intent of intimidating a person. White, 670 F.3d at 508. The Fourth Circuit did not
view such language as instructive in its interpretation of Black 's threshold definition of true threat; nor does this
Court. The majority of cases discussing this exception to the First Amendment have universally addressed true
threats as threats of bodily harm or injury. See, e.g., White, 670 F.3d at 51214; Turner, 720 F.3d at 421
22; Jeffries, 692 F.3d at 47577. Although Intervening Plaintiffs have cited other cases for the proposition that a
threat to property is sufficient to find a true threat, several such cases address threats to bomb or burn buildings,
which necessarily include the possibility of bodily harm and, for that reason, are distinguishable from the allegedly
threatening suggestions at issue here. PostRemand Br. in Supp. of Obj. 3133, ECF No. 152 (collecting
cases); see, e.g., United States v. Viefhaus, 168 F.3d 392, 39496 (10th Cir.1999) (defining true threats in a
federal prosecution based on the defendant's recorded statement referring to the bombing of a federal building and
threatening to activate bombs in 15 preselected major U.S. cities one week from the date of the recording).
Furthermore, in light of the Fourth Circuit's detailed consideration of White's Warman postings and the above-
noted similarities between such postings and White's statements about Mottley, the Court finds no basis for
concluding that the purported threats to Mottley's property are proscribable true threats while his repeated
demand for Warman's murder is not. Accordingly, the Court declines to interpret true threats as expansively as
Intervening Plaintiffs suggest.
(ii) Context
*55 Although the language of a purportedly threatening statement is critical to any true threat analysis, the
context in which such statement was made is equally essential to the determination of its status under the First
Amendment. Accordingly, as discussed in detail above, the Court must consider those contextual factors that
inform how a reasonable recipient familiar with the context would understand White's postings in this
matter. White, 670 F.3d at 509 (emphasis omitted). These factors include the manner and forum in which the
postings were communicated, the reaction of the audience to such postings, and any other circumstances
corroborating the seriousness of the purported threat. See, e.g., Watts, 394 U.S. at 70708; Bly, 510 U.S. at
459; Carmichael, 326 F.Supp.2d at 1281.
The majority of the communications at issue are blog postings to various public websites, including the Vanguard
News Network forum, Overthrow.com, and the ANSWP Yahoo! Groups page.
77
Although the internet presents the
problem of virtually unlimited and rapid proliferation of information in a fashion unlike any other media, Mag. Judge
Order 68, ECF No. 98, the Supreme Court has held that there is no basis for qualifying the level of First
Amendment scrutiny that should be applied to it as a medium of communication. Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997); accord Carmichael,326 F.Supp.2d. at 1288
89 (interpreting the Supreme Court's holding in Reno to mean that speech on the [I]nternet is subject to no greater
or lesser constitutional protection than speech in more traditional media). In so holding, the Supreme Court noted
that the Internet is a dynamic, multifaceted category of communication [that] includes not only traditional print and
news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Id. Indeed, the
Supreme Court lauded the Internet's ability to turn any person with a phone line [into] ... a town crier with a voice
that resonates farther than it could from any soapbox and further observed that [t]hrough the use of Web pages,
mail exploders, and newsgroups, the same individual can become a pamphleteer. Id.The end result is a forum in
which the content ... is as diverse as human thought. Id. (quoting Am. Civil Liberties Union v. Reno, 929 F.Supp.
824, 842 (E.D.Pa.1996), aff'd, 521 U.S. 884 (1997)). Thus, the Internet, as a forum for speech, is more akin to the
political rally in Watts than to the targeted mailings, emailings, and telephone calls at issue in Cooper, Lockhart,
Bly, and White. Indeed, a review of the communications at issue in those cases supports this conclusion.
The Fourth Circuit has repeatedly and consistently considered the direct and private communication of an allegedly
threatening statement to a specific individual as a significant contextual factor in determining whether such
statement constitutes a true threat.See, e.g., White, 670 F.3d at 51214; Bly, 510 F.3d at 459; Lockhart, 382 F.3d
at 452. Thus, in White, the court held that White's targeted phone calls and emails to Petsche and Kerr were true
threats while concluding that his Internet postings about Warman were protected under the First
Amendment.
78
670 F.3d at 51214. Like the Warman postings, the majority of White's statements concerning
Mottley were publicly posted to Internet forums promoting discussion of historically contentious issues such as
white supremacy and neo-Nazi ideologies. Cf. Hardwick ex rel. Harwick v. Heyward, 711 F.3d 426, 436 (4th
Cir.2013) (collecting cases discussing the controversial nature of speech involving the Confederate fl ag, noting that
it is both a symbolic acknowledgement of pride in Southern heritage and ideals of independence, as well as a
symbol of racial separation and oppression and a representation of approved white supremacy). Although the
Court emphasizes the dangers inherent in White's inclusion of Mottley's contact information in his public postings,
it nevertheless concludes that this contextual factor weighs in favor of protecting such postings.
*56 Although the majority of the communications at issue were published to various Internet forums, White did
send copies of two writings, via email, directly to Mottley and his own attorney, Brown. See PreHr'g Supplemental
Br. Ex. A, ECF No. 552; PostRemand Br. in Supp. of Obj. J.A. 345, ECF No. 1525. Intervening Plaintiffs argue
that such direct communication demonstrates the threatening nature of the statements contained in those emails.
Although the direct communication of a purported threat is a significant factor in the Court's analysis, the timing
and contents of the two emails here do not support the conclusion that White's emails amounted to true threats.
First, both emails were sent on the evening of February 28, 2008, the same day as the subpoena hearing before
the Magistrate Judge at which Intervening Plaintiffs' Motion for Sanctions was preliminarily addressed. Second, the
emails were directed to both Mottley and Brown. Third, and most significantly, both emails were apparently
responsive to requests or suggestions made at the hearing. Specifically, as discussed above, counsel for
Intervening Plaintiffs had suggested at the hearing that, to remedy the danger posed by his February 22, 2008
posting, [W]hite can post something indicating he now understands the rule of law and that he denounces and
rejects the suggestion that people are open game once litigation ceases, and had reiterated, He can do that. Why
doesn't he? what's going on? Hr'g Tr. 6566, Feb. 28, 2008. The first email, sent at 6:55 p.m. that evening, was
entitled, Norfolk Case Update and stated that the following message had been [s]ent today to our general
membership, in case there was any doubt as to my intentions or my instructions regarding Mr. Mottley and
company. PreHr'g Supplemental Br. Ex. A, ECF No. 552. Thus, this email was, ostensibly, responsive to
counsel's request that White clarify his prior posting.
79
Similarly, during the course of the subpoena hearing, the
Magistrate Judge had asked if White could remove the February 22, 2008 posting from the Vanguard News
Network forum pending the resolution of Intervening Plaintiffs' Motion for Sanctions. Hr'g Tr. 69, Feb. 28, 2008.
White had indicated that he did not exercise control over the website, but that he would inquire about having the
posting removed. White's second direct email to counsel, sent at 8:35 p.m., was entitled, Thread Removed From
Vanguard News Network and said only, The objectionable thread on Vanguard News Network was removed
today.
80
PostRemand Br. in Supp. of Obj. J.A. 345, ECF No. 1525. This second email does not contain any
threatening language. Nor does the first, for the reasons discussed in detail above.
81
Thus, the fact that White
twice emailed Mottley directly, without more, does not compel the conclusion that the otherwise nonthreatening
emails are nonetheless prescribable as true threats.
Another important contextual factor in the Court's analysis of the relevant context is the audience reaction to
White's statements concerning Mottley. Indeed, the Fourth Circuit has repeatedly considered this fact in
determining the status of a purported threat under the First Amendment. See, e.g., White, 670 F.3d at 512
13 (noting that the serious reactions to White's communications with Petsche and Kerr provid[ed] corroborating
evidence of how the threat would be taken by a reasonable person); Lockhart, 382 F.3d at 452 (comparing the
crowd's laughter in Watts to the Pentagon officer's impression that the statements in Cooper were made in a
serious vein before concluding that the applicant's statements were a true threat (quoting Cooper, 865 F.2d at
85)). Here, the record reveals that Mottley, his law firm, and local law enforcement took White's postings very
seriously. Hr'g Tr. 12629, Apr. 2, 2008 (discussing the various security precautions taken after White's February
22, 2008 postings, including additional patrols of Mottley's neighborhood by the Henrico County Police Department
and the installation of a security system at Mottley's residence at his firm's expense). Thus, this factor weighs in
favor of excluding White's postings from First Amendment protection. However, because such evidence is merely
corroborative and not dispositive, the Court must consider whether anything else in context of White's postings
indicate that they were a serious expression White's intent to harm Mottley, from the perspective of a reasonable
recipient. See, e.g.,Watts, 394 U.S. at 70708; Bly, 510 U.S. at 459; Carmichael, 326 F.Supp.2d at 1281.
*57 The Court, therefore, next considers those surrounding circumstances bearing on the seriousness of White's
purported threats. First, as noted above and in the Magistrate Judge Order, White's postings in this matter
repeatedly express his discontent with the underlying litigation, with Mottley's issuance of the subpoenas against
him and his various entities, with what he viewed as the Court's indulgence of such subpoenas, and with the
resulting court process, generally. See Mag. Judge Order 66, ECF No. 98. In considering this context, the
Magistrate Judge noted White's tendency to use various internet websites and blogs to attack any group or
individual who opposes [his] cause or who support causes that conflict with [his] viewpoint. Id. Intervening
Plaintiffs object to the Magistrate Judge's discussion of this fact, arguing that, considering such context compels
the conclusion that the more people White threatens, the more constitutional protection his threats receive. Post
Remand Br. in Supp. of Obj. 33, ECF No. 152.
The record before this Court reveals that White, indeed, is a prolific writer who regularly publishes to the Internet
his criticisms of people and groups with whom he disagrees. This fact is relevant to the Court's determination of
whether a subset of such writings constitute true threats, because it speaks to White's intent in authoring the
postings at issue here.
82
Specifically, the fact that White regularly publishes his social and political views on the
Internet suggests that, when he expressed similar views concerning the underlying litigation, generally, and
Mottley, specifically, he did so with the intent to engage in similar political or social discourse.
83
See Lockhart, 382
F.3d at 452 (finding it a significant factor that nothing in the applicant's actions suggest[ed] she intended to
engage in political discourse with the Food Lion management). White's manner of discoursethe criticism of
specific individuals and groups for their opposing views or conduct-is certainly a very crude offensive method of
stating his opinions, but when such discourse does not include a serious expression of intent to harm, from the
perspective of a reasonable recipient, it is not a true threat beyond the ambit of First Amendment
protection. White, 670 F.3d at 509 (quoting Black, 670 F.3d at 359) (internal quotation marks omitted).
In recognizing that constitutional protection extends even to such vituperative, abusive, and inexact
speech, Watts, 294 U.S. at 708, the Court emphasizes that there is a line, one that, if crossed, exposes the
speaker to lawful sanctions without regard to his otherwise robust First Amendment interest in expressing
himself. See, e.g., Black, 538 U.S. at 35859 (The First Amendment permits restrictions upon the content of
speech in a few limited areas, which are of such slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in order and morality. (quoting R.A.V., 505 U.S. at
38283)(internal quotation marks omitted)). Indeed, as the Court's detailed review of White's numerous and
serious legal troubles makes clear, when the language and context of his speech has evinced a true threat, he
has been vigorously prosecuted in federal court. The fact that White has repeatedly crossed the linein his
statements concerning Juror A and his communications with Petsche, Kerr, and Intervening Plaintiffshas not, as
Intervening Plaintiffs here suggest, shielded him from criminal sanctions. See White, 698 F.3d at 1014
15; White, 670 F.3d at 507. Furthermore, as the Magistrate Judge emphasized, even minute or subtle changes to
the language or context of White's postings in this case could have excluded them from constitutional protection,
regardless of the fact that White frequently expresses his social and political opinions on the Internet. Mag. Judge
Order 64, ECF No. 98. Nevertheless, in light of the language and context of White's postings, the Court finds the
fact that such postings are consistent with his general method of engaging in social and political discourse to be a
relevant factor in determining White's First Amendment interest, if any, in his statements.
*58 In addition to the context created by White's frequent postings, the Court considers the evidenceor lack
thereofconcerning the general audience for such postings. This is a factor of some significance in light of the
Fourth Circuit's discussion of White's Warman postings and this Court's determination that, like those postings,
White's statements about Mottley do not express a direct threat, or rather, a serious expression of White's intent
to commit an act of unlawful violence against Mottley. Black, 538 U.S. at 359; see also White, 670 F.3d at
514 (concluding that White's communications at most conveyed a serious desire that Warman be harmed by
others (emphasis in original)). This factor, however, is distinct from the audience reaction to White's
communications, discussed above. Here, the Court considers, as did the Magistrate Judge, the evidence before it
concerning the number and identity of White's readers and whether any such readers have predictably acted on
his violent commands, such that action against Mottley would have been a foreseeable consequence of the
relevant postings. See White, 670 F.3d at 513.
There is very little evidence before the Court concerning this factor. Nothing in the record reveals the identity of
White's readers nor the size of his following. The only information the Court can glean about White's general
audience is derived from the content of White's writings. Specifically, his readers (for whatever reason) peruse
editorials that express offensive and inflammatory white supremacist and neo-Nazi ideologies. In this respect,
Intervening Plaintiffs have argued that White's readers are members of the neo-Nazi movementa movement
notorious for using violence to promote its repugnant views, and, therefore, that White's public criticism of Mottley
to such people necessarily constitutes a threat of bodily harm. PostRemand Br. in Supp. of Obj. 2829, ECF No.
152. Although this may be an accurate characterization of White's readers, there is little before the Court to
support such a conclusion. Indeed, when presented with similar evidence concerning White's general
audience,
84
the Fourth Circuit concluded that White's Warman postings were directed ... to the public generally
and not to a specifically dangerous group of individuals. White,670 F.3d at 513. Thus, on the limited record before
it, the Court cannot meaningfully distinguish White's readers from the public, generally.
Additionally, there is no evidence that White exercised control over his audience. In fact, the only evidence
suggestive of such control is White's publication of at least one posting to ANSWP's Yahoo! Group page. However,
the Court observes that, like his separate blog (Overthrow.com), the postings to ANSWP's group page were
apparently publicly available until sometime after the Magistrate Judge issued his recommendations in this matter,
as evidenced by the Magistrate Judge Order's citations directly to that website.See, e.g., Mag. Judge Order 22
n.32, ECF No. 98. Thus, whatever degree of control the Court might have been able to infer from White's postings
to the ANSWP Yahoo! Groups page is mitigated by the general public's ability to access that page. Although he
wrote as the Commander of ANSWP, there is no evidence that White directed communications to individuals
subject to his control or command. Accordingly, the Court finds that White's publication to the ANSWP page does
not show that he exercised any control over his readers. Nor does any other evidence suggest the presence of
such control.
85

*59 Similarly lacking is any indication that White's violent commands in the past had predictably been carried
out. White, 670 F.3d at 513. As the Fourth Circuit observed, White's own writings (provided as context for the
postings at issue) reference earlier acts of violence, including the romanticized description of his physical
altercation with an African American crack dealer and the firebombing of an activist's house. White, 670 F.3d at
514; J.A. 38490. The Court agrees that, in light of the record before it, there is clearly a violent edge that
accompanie[s] all of White's statements. White, 670 F.3d at 514. Despite such overtones, there is no evidence
before the Court that White's calls to violence have ever been answered. The absence of such evidence
distinguishes this case from the Ninth Circuit's decision in Planned Parenthood, 290 F.3d at 1079, which held, in
pertinent part, that WANTED posters identifying specific targets by name, photograph, and address amounted to
true threats, in light of the fact that three individuals previously featured in such posters had been
murdered. Id. Considering this context, the Ninth Circuit held that, even if the first WANTED poster[ ] was a
purely political message when originally issued, and even if the [second] poster were too, by the time of the [third]
poster, the poster format itself had acquired currency as a death threat for abortion providers. Id. No such context
exists in this case.
Nor is there evidence that White, himself, has suggested in an allegedly threatening statement that a causal
connection exists between his writings and acts of violence. Although White boasted in his editorial on Roanoke
Times editor Chris Trejbal that his organization had posted his home address and phone number online, and that
[b]omb threats followed, and his house had to be evacuated, J.A. 348, any connection suggested between
White's online postings and such threats was not made in the context of a purported threat of harm or injury.
Additionally, White testified at the April 2, 2008 evidentiary hearing that he was only one of a number of sources to
post such information, Hr'g Tr. 3031, Apr. 2, 2008. White conceded that he could not take credit for the bomb
threats allegedly following his own publication of the information. Id. Thus, both the language and the context in
this case are distinguishable from that presented in the Second Circuit's recent decision in Turner, 720 F.3d at
422, where the defendant authored a blog post calling for the murder of three federal judges in which he provided
directions to the judges' chambers and publicly implied a causal connection between [his] calls for judges' deaths
and actual murders. Id. Although White similarly suggested such a connection, such suggestion was not included
in any allegedly threatening statement and his concessions at the evidentiary hearing before the Magistrate Judge
significantly weaken the impact of his prior claim.
*60 The only actions of which this Court is aware that are alleged to have resulted from White's postings are the
two calls placed to Mottley's home telephone in the early morning hours of March 1, 2008. Intervening Plaintiffs
contend that the proximity of such calls to White's initial posting of Mottley's personal, identifying information and
the caller's request to speak to Mottley's wife by the name included in those postings establish their connection to
White's purported threats. PostRemand Br. in Supp. of Obj. 1314, ECF No. 152. The Magistrate Judge
concluded differently, determining that there is no way to relate the two late-night telephone calls ... to White
himself or to any reader of White's postings. Mag. Judge Order 6768, ECF No. 98. This Court agrees. Unlike
in White, there is no evidence before this Court concerning the caller's identity. See White, 670 F.3d at
504 (discussing White's phone call to Kerr and noting that the caller had identified himself to Bedgar as Bill
White, and telephone records showed that a telephone call had been placed on that day from White's home to
Kerr's office); see also Hr'g Tr. 13738, Apr. 2, 2008 (noting that efforts at identifying the caller revealed only that
the call was placed from an unknown name, unknown number). Although the circumstantial evidence suggests
the possibility that the calls were connected to or inspired by White's postings, the record also reveals that the
information contained in those postings, including the name given for Mottley's wife, was derived from other public
sources. See Mag. Judge Order 73, ECF No. 98. Thus, while the circumstances surrounding the calls may be
suspicious, ... there is no evidence that [White] had anything to do with [them]. Carmichael, 326 F.Supp.2d at
1288 n. 44 (discussing a purportedly retaliatory break-in at a witness's home, shortly after he agreed to become a
witness against the defendant, and concluding that, despite the close proximity of the break-in and the publication
of the witness's personal, identifying contact information on the defendant's website, the circumstances did not
establish that the defendant had anything to do with it). Thus, despite the two telephone calls, the Court finds no
evidence that White's postings have inspired actionviolent or otherwisein this case or at any other time
previously. See Carmichael, 326 F.Supp.2d at 1288 (Here, while there is some evidence that Carmichael may
have issued threats in the past, there is no evidence of actual retaliatory acts against witnesses or DEA agents
involved in this case, and certainly no evidence linked to Carmichael or his supporters. (emphasis in original)).
As determined above, White's statements about Mottley, like his Warman postings, do not actually provide[ ] a
threat from White that expressed an intent to kill or otherwise harm Mottley. White, 670 F.3d at 513. Although a
direct threat of that type is not required to find a true threat, a statement that merely bids others to injure its
target does not amount to a proscribable threat when the evidence fails to establish that White had some control
over those other persons or that White's violent commands in the past had been predictably carried out. Id. As
the Fourth Circuit has made clear:
*61 While neither direct communication nor personal or group involvement in the threat is an essential component
to finding a true threat, the lack of both along with the fact that White's language was clearly directed to others in
the form of advocacy, makes it impossible for [this Court] to conclude that a reasonable recipient would understand
White's communications to be serious expressions of intent to commit harm.
Id. at 51314 (emphasis in original). Like his Warman postings, the communications at issue here, along with the
context surrounding them, may have undoubtedly frightened Mottley and his family, but those communications at
most conveyed a seriousdesire that [Mottley] be harmed by others and not a serious expression of intent to do
harm from the perspective of a reasonable recipient. Id. at 514; see also Carmichael, 326 F.Supp.2d at
1285 (Context can help explain the website's meaning, but it is the website that is the focus of the court's inquiry).
Additionally, the majority of the contextual factors relevant to the Court's analysis do not suggest that a reasonable
recipient familiar with the context would have understood White's postings to be serious expressions of his intent to
commit an act of unlawful violence against Mottley. Black, 538 U.S. at 359; see also White, 670 F.3d at 505,
514(rejecting the government's argument that the context surrounding White's Warman postings elevates the
statements and makes up for the lack of a direct threat to commit harm, even when the context included extensive
postings during a three-year period repeatedly calling for [Warman's] assassination and posting his home
address); Carmichael, 326 F.Supp.2d at 1285 (Although the broad social context makes the case closer, the
background facts ... are too general to make the Carmichael case site a true threat. ). Considering the full
context, including the language of White's postings and all of the relevant contextual factors, the Court finds that
the postings at issue are not true threats excluded from First Amendment protection.
ii. Incitements
Although the Court has determined that White's statements are not proscribable true threats, the fact that at least
some of the postings at issue arguably express a desire that someone else take action against Mottley, requires
the Court to briefly consider, as did the Magistrate Judge, whether such postings might otherwise be excluded from
First Amendment protection as incitements to imminent lawlessness. See Mag. Judge Order 6970, ECF No. 98.
Like true threats, incitement is a category of speech excluded from First Amendment protection. However, this
exception is quite narrow. In defining its scope, the Supreme Court has repeatedly emphasized that
mere advocacy of the use of force or violence does not remove speech from the protection of the First
Amendment. N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 927, 102 S.Ct. 3409, 73 L.Ed.2d 1215
(1982) (emphasis in original) (citing Brandenburg, 395 U.S. at 447). Rather, to constitute proscribable incitement,
advocacy must be directed to inciting or producing imminent lawless action and [be] likely to incite or produce
such action. Brandenburg, 395 U.S. at 447 (emphasis added); accord id. at 448 ([T]he mere abstract teaching of
the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group
for violent action and steeling it to such action. (quoting Noto v. United States, 467 U.S. 290, 29798 (1961)
(internal quotation marks omitted)). Whether speech incites such imminent lawlessness is evaluated by
the objective facts surrounding the speech. White, 670 F.3d at 51 (collecting cases) (rejecting the dissent's
argument that Brandenburg requires a court to consider the speaker's subjective purpose for
speaking);accord Johnson, 491 U.S. at 409 (discussing the incitement exception and requiring careful
consideration of the actual circumstances surrounding such expression).
*62 In concluding that the postings at issue were not direct threats that White himself would inflict harm on Mottley
or Mottley's family, the Magistrate Judge considered whether the postings were nevertheless directed to inciting
others to inflict such harm. Mag. Judge Order 69, ECF No. 98. Quoting the district court's analysis
in Carmichael, 326 F.Supp.2d at 1287, the Magistrate Judge reasoned that this question necessarily implicate[d]
the Supreme Court's stringent incitment doctrine. Id. After reviewing that doctrine, the Magistrate Judge
determined that [t]here simply is insufficient evidence that White's postings meet the imminency requirement
of Brandenburg. Mag. Judge Order, ECF No. 98 (quoting Carmichael, 326 F.Supp.2d at 1287).
Intervening Plaintiffs object to the Magistrate Judge's conclusion, arguing that Brandenburg is distinguishable from
the instant case because the speaker in that case advocated the overthrow of the government, not harm against a
specific individual. PostRemand Br. in Supp. of Obj. 37, ECF No. 152. Intervening Plaintiffs further argue that,
under the Magistrate Judge's analysis, it would be perfectly lawful to encourage others to kill a specific lawyer ... so
long as the encouragement is qualified by some phrase that would make the proposed murder appear less than
imminent.
86
Id. at 38.
Reviewing White's postings, the Court agrees with the Magistrate Judge that, like the website in Carmichael, there
is no evidence that White's statements meet[ ] the imminency requirement of Brandenburg. Carmichael, 326
F.Supp.2d at 1287; see also Planned Parenthood, 290 F.3d at 1092 n. 5 (Kozinski, J., dissenting)
(Under Brandenburg, advocacy can be made illegal if it amounts to incitement. But incitement requires an
immediacy of action that simply does not exist here, which is doubtless why plaintiffs did not premise their claims
on an incitement theory.). As discussed at length above, the evidence fails to establish that White's postings have
previously inspired any actionimminent or otherwise. In the absence of such evidence, the fact that White
published his statements to the Internet, alonealthough deeply troublingis not enough to show that the actions
suggested therein were likely to be immediately carried out by White's readers. See Planned Parenthood, 290 F.3d
at 1092 n. 5 (Kozinski, J., dissenting) (observing that the publication of WANTED posters to a website did not
establish the immediacy of action required to support the exclusion of such posters under the incitement
theory); Carmichael, 326 F.Supp.2d at 1287 (finding no evidence that a website publishing the personal,
identifying information of government witnesses meets the imminency requirement of Brandenburg and
concluding that the site was not prescribable as constitutionally unprotected advocacy of violence). Thus, even if
the objective circumstances surrounding White's postings indicate that they were direct[ed] to inciting or producing
imminent lawless action,
87
the lack of any evidence establishing that his statements were likely to incite or
produce such action distinguishes them from those incitements prescribable under Brandenburg.
88
395 U.S. at
447. Therefore, White's postings are not excluded from First Amendment protection as incitements
to imminent lawless action. See id.
*63 The Court does observe, however, that Intervening Plaintiffs' proposed distinction, based on the specificity of
White's statements, is well taken. Indeed, courts have distinguished statements directing or advocating harm to a
specific individual from prescribable advocacy of violence. See, e.g., Planned Parenthood, 290 F.3d at 1073
74 (citing Claiborne, 458 U.S. at 929); Carmichael, 326 F.Supp.2d at 1288 (citing Claiborne, 458 U.S. at
929). Such distinction, however, is not drawn to permit the proscription of speech that fails to
satisfy Brandenburg 's imminency requirement. Rather, courts have considered the fact that a speaker advocates
violence against a specific individual to support their analysis of his speech as a true threat, instead of as
unlawful incitement. See, e.g.,Planned Parenthood, 290 F.3d at 107374 (distinguishing the WANTED posters at
issue from protected advocacy because, among other things, the posters targeted specific individuals and,
therefore, were more analogous to a true threat than incitement);Carmichael, 326 F.Supp.2d at 128788. Thus,
the fact that White's statements specifically identified Mottley does not support their proscription
under Brandenburg without regard to the absence of evidence suggesting that action against Mottley was
imminent.Claiborne, 458 U.S. at 927 (citing Brandenburg, 395 U.S. at 447) ([M]ere advocacy of the use of force or
violence does not remove speech from the protection of the First Amendment.). Rather, such identification
suggests that White's postings are more appropriately analyzed under the true threats exception, a question the
Court has already considered at length. Accordingly, the Court finds that the postings at issue are not excluded
from First Amendment protection as either true threats or incitements to imminent lawless action. As no other
exception apparently applies, White's postings constitute protected speech under the First Amendment.
iii. Conclusion
In concluding that White's speech is constitutionally protected, the Court does not minimize the real fear of harm
and intimidation that Mottley and his family experienced as a result of his conduct. The Court strongly disapproves
of the method by which White sought to express his views in this matter. Despite its protected status, the Court
finds White's conduct to be reprehensible and, again, emphasizes that minute or subtle changes to the language
or context may have resulted in the exclusion of his speech from First Amendment protection. The significance of
this point should not be lost on White or on any other similarly situated person in light of the Court's ultimate
ruling. See Mag. Judge Order 41 n.42, ECF No. 98. However, in our democratic society, when presented with even
caustic or abusive protected speech, we do not quash fear by increasing government power, by proscribing [our
fundamental] constitutional principles, and silencing those speakers of whom the majority
disapproves. Sheehan, 272 P. Supp.2d at 1150. Indeed:
*64 As Justice Harlan eloquently explained, the First Amendment demands that we confront those speakers with
superior ideas:
The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is
designed and intended to remove governmental restraints from the arena of public discussion, putting the decision
as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will
ultimately produce a more capable citizenry and more perfect polity and the belief that no other approach would
comport with the premise of individual dignity and choice upon which our political system rests. To many, the
immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive
utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring
values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal
cacophony is, in this sense[,] not a sign of weakness but of strength. We cannot lose sight of the fact that, in what
otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these
fundamental societal values are truly implicated.
Id. (quoting Co hen v. California, 403 U.S. 15, 2425, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)) (internal citations
omitted).
c. Balancing of White's First Amendment Interests Against the Proffered Compelling Government Interests
Having concluded that the Court's inherent Article III power to sanction extends to White's bad faith conduct, but
also that such conduct falls within the scope of the First Amendment's robust protections, the Court must
determine where the individual's freedom ends and the State's power begins, Thomas, 323 U.S. at 52930
(1945), that is, whether White's constitutional interest in free expression should limit or yield to the Court's inherent
power to sanction his bad faith conduct.
In determining not to recommend sanctions, the Magistrate Judge considered the relationship between the Court's
power and White's protected speech. Specifically, the Magistrate Judge concluded that White's conduct before the
Court ha[d] been beyond reproach and that there was no evidence that White's postings significantly impacted
the underlying litigation. Mag. Judge Order 41, 7375, ECF No. 98. Based on the lack of any discernible disruption
and the protected status of White's writings, the Magistrate Judge declined, in his discretion, to recommend
sanctions against White pursuant to the Court's inherent authority. Id. at 64.
Intervening Plaintiffs object to the Magistrate Judge's analysis. First, they contend that he improperly considered
whether White's conduct impacted the underlying litigation, arguing that this fact is irrelevant to determining
whether White's Internet posting is a true threat. See PostRemand Br. in Supp. of Obj. 39, ECF No. 152. Next,
they argue that the Magistrate Judge erred by failing to engage in strict scrutiny balancing of White's First
Amendment interests against the Court's compelling interests in ensuring access to and the integrity of the judicial
process. Id. at 4144. Before considering Intervening Plaintiffs' specific objections, the Court reiterates those
general principles observed above concerning the scope of the constitutional powers and protections at issue.
*65 First, this Court generally possesses broad inherent power under Article III to sanction bad faith or
contemptuous conduct. SeeRoadway Express, 447 U.S. at 764. Indeed, upon the requisite finding of bad faith, the
Court has wide discretion to fashion an appropriate sanction for conduct occurring before it or beyond its confines
and such sanction can readily include attorneys' fees. SeeChambers, 501 U.S. at 4445. This broad power
necessarily inheres to the court as a means of protecting the due and orderly administration of justice and [of]
maintaining the authority and dignity of the court.... Roadway Express, 447 U.S. at 764 (quotingCooke, 267 U.S.
at 539) (internal quotation marks omitted) (citing 4 W. Blackstone, Commentaries *282*285). However, the
Supreme Court has repeatedly emphasized that courts acting pursuant to their inherent power must exercise
restraint and discretion. Roadway Express, 447 U.S. at 764; accord Chambers, 501 U.S. at 50 (citing Roadway
Express, 447 U.S. at 767). The Court's inherent authority is, therefore not a broad reservoir of power, ready at an
imperial hand, but a limited source that springs from the well of necessity, and [only] sparingly so. Natural Gas
Pipeline, 2 F.3d at 140607 (quoting NASCO, 894 F.2d at 702).
Second, the First Amendment fiercely guards an individual's right to free speech. See, e.g., Knox, 132 S.Ct. at
2288 (noting the close connection between our Nation's commitment to self-government and the rights protected
by the First Amendment); Cohen, 403 U.S. at 24 (The constitutional right of free expression is powerful medicine
in a society as diverse and populous as ours.); Watts, 394 U.S. at 708 (recognizing the profound national
commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it
may well include vehement, caustic, and sometimes unpleasantly sharp attacks (quoting Sullivan,376 U.S. at
270) (internal quotation marks omitted)). This constitutional protection does not turn upon the truth, popularity or
social utility of the ideas and beliefs which are offered. Sullivan, 376 U.S. at 271 (quoting N.A.A.C.P. v.
Button, 371 U.S. 415, 445, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963)). Additionally, the Supreme Court has emphasized
that in [its] judgment, most situations where the State has a justifiable interest in regulating speech will fall within
one or more of the various established exceptions ... to the usual rule that governmental bodies may not prescribe
the form or content of individual expression. Co hen, 403 U.S. at 24. At the same time, there may be cases very
near the line between speech unconditionally guaranteed and speech which may be regulated.Sullivan, 376 U.S.
at 285 (quoting Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958)) (internal quotation
marks omitted). Accordingly, courts must make an independent examination of the whole record, so as to assure
[them]selves that the[ir] judgment does not constitute a forbidden intrusion on the field of free
expression. Id. (internal citations omitted). For, [c]ourts, too, are bound by the First Amendment. Citizens
United, 558 U.S. at 326. And the application of First Amendment standards ... must give the benefit of any doubt
to protecting rather than stifling speech. Id. (quoting Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S.
449, 469 (2007) (Roberts, C.J)); accord Button, 371 U.S. at 433 (First Amendment freedoms need breathing
space to survive.).
*66 These underlying principlescounseling for the robust protection of speech under the First Amendment and
the restrained exercise of the inherent powers accorded by Article IIIgive the Court great pause when
considering the appropriateness of any discretionary sanctions award based solely on White's Internet
postings.
89
See Bridges v. State of Cal., 314 U.S. 252, 260, 62 S.Ct. 190, 86 L.Ed. 192 (1941) ([F]ree speech and
fair trials are two of the most cherished policies of our civilization, and it would be a trying task to choose between
them.). Although the Court has concluded that White authored the postings in bad faith, their protected status
under the First Amendment precipitates the vexing question of whether White's bad faith is sufficient to justify an
exercise of the Court's inherent power to sanction over his otherwise protected speech. Because the inherent
power to sanction bad faith conduct derives from the Court's interests in the due and orderly administration of
justice and in maintaining its own authority,Roadway Express, 447 U.S. at 764, the Court views the degree to
which those interests have been interfered with as a necessary part of its inquiry. Indeed, courts that have
considered whether to subject a nonparty to sanctions under their inherent powers have consistently considered
the degree to which the nonparty's conduct disrupted or interfered with their proceedings as a significant factor in
their analysis. See, e.g., In re Holloway, 884 F.2d at 477 & n. 2; Helmac Prods., 150 F.R.D. at 568.
On this point, the Magistrate Judge concluded that White's postings did not interfere with any aspect of the instant
or underlying proceedings. First, the Magistrate Judge observed that:
With respect to the subpoenas at issue and the instant litigation of the Motion for Sanctions, White has participated
fully and he does not appear to have interfered with the lawful processes of the Court. After lawfully objecting to
the issued subpoenas and participating in a hearing on his motion to quash, the parties were able to negotiate a
mutually-agreeable protective order and White ultimately submitted to a discovery deposition. There have been no
allegations that White has failed to comply or disobey any order of the Court.
Mag. Judge Order 7374, ECF No. 98. The Magistrate Judge emphasized that the only dispute in which White
directly participated was that concerning the Yahoo! subpoena, which the parties resolved at the February 28,
2008 hearing. Id. at 74. Significantly, it appears that the Yahoo! subpoena was never responded to by Yahoo!,
and that no efforts [were] made by counsel for Intervening Plaintiffs to compel any response to that subpoena. Id.
The Magistrate Judge further concluded that despite White's actions, there was ultimately no measurable impact
on the underlying litigation. Id. at 74. On this point, he noted the multiple hearings and related proceedings filed
by all the affected parties and the non-party. Id. While observing that such subpoena and other discovery-related
matters are commonplace in federal court litigation, the Magistrate Judge also recognized the arguments of
Intervening Plaintiffs ... that the ongoing dispute with White over the various postings ha[d] been an unwanted and
unnecessary distraction that very well could have disrupted the underlying litigation. Id. at 7475 (emphasis
added). Reviewing the record in light of this contention, the Magistrate Judge found no evidence, however, that
counsel's representation of Intervening Plaintiffs was affected or that White's postings otherwise impacted the
prosecution of the underlying action. Id. at 75. To the contrary, Mottley was able to successfully negotiate a
settlement on his client's behalf, the trial date remained in place during the entire process, and [there was] no
apparent impact on the litigation. Id.
*67 Reviewing the record, the Court agrees with the Magistrate Judge's conclusion that White's postings did not
discernibly impact either the subpoena dispute in which he was directly involved or the prosecution of the
underlying litigation. White's Motion to Quash and Intervening Plaintiffs' related motion (the only aspect of this
litigation in which White directly participated) were resolved, as narrowed, at the February 28, 2008 hearing before
the Magistrate Judge. This hearing was set on the same day that White made his initially objectionable postings
and there is no evidence before the Court that those postings interfered with the proceedings. Furthermore, the
majority of White's objectionable postings-including his two February 28, 2008 emails to counselwere authored
after the hearing and, therefore, could not have impacted the resolution of the subpoena dispute in which White
was directly involved.
Concerning the underlying litigation, the Court agrees with the Magistrate Judge that, despite Mottley's testimony
that he considered withdrawing from his representation of Intervening Plaintiffs, White's postings had no
discernible impact on the prosecution of that dispute. Specifically, the first postings of which the Court is aware
were published on February 22, 2008. Intervening Plaintiffs filed the Motion for Sanctions on February 27, 2008.
The Magistrate Judge established a briefing schedule concerning that motion and set an evidentiary hearing for
April 2, 2008. Meanwhile, the original trial date remained in place.
90
Despite being actively involved in briefing and
preparing to argue the Motion for Sanctions, the record reveals that counsel for Intervening Plaintiffs were able to
settle the underlying dispute by agreement executed on the same day as the evidentiary hearing. See Consent
Order 12, ECF No. 90. Thus, the filing of the Motion for Sanctions, and the proceedings related to that motion, did
not apparently significantly impair Intervening Plaintiffs' ability to satisfactorily resolve their dispute. Furthermore,
the Court notes that at least three of the postings at issue-including the April 2008 postings in which White
republished Mottley's personal, identifying information and his August 16, 2008 Funny Games postingwere
authored after Intervening Plaintiffs had settled the underlying dispute and, therefore, could not have disrupted or
otherwise affect its prosecution.
As did the Magistrate Judge, the Court commends Mottley for successfully representing [his] clients' interests and
for proceeding courageously in the face of adversity. Mag. Judge Order 64, ECF No. 98. Indeed, his ability to do
so is a testament to his fortitude.
91
In commending Mottley's dedication to his clients, the Court does not mean to
suggest that such resilience should be punished through the denial of relief to which Intervening Plaintiffs would
otherwise be entitled. However, in determining whether Intervening Plaintiffs are entitled to such relief, the Court
views the degree to which the allegedly sanctionable conduct interfered with this and the underlying litigation as a
significant factor, especially when such conduct occurred outside of the Court's presence and is otherwise
protected by the First Amendment. See Chambers, 501 U.S. at 54 (affirming sanctions against petitioner for bad
faith conduct occurring outside of the court's presence when that conduct perpetrated a fraud upon the court); see
also Helmac Prods., 158 F.R.D. at 568 (considering the degree of a nonparty's interest and participation in the
proceedings in which he interfered in determining whether sanctions under the court's inherent power were
appropriate (emphasis added)); City of Detroit, 2010 WL 5326953, at *3(observing the absence of a clear rule
concerning the scope of the court's inherent authority vis--vis a nonparty who did not violate any specific court
order).
*68 The only evidence of potential disruption that the Court can discern from the record is the prolonged litigation
of the instant Motion for Sanctions, including the time and resources expended in its prosecution, as established
through Mottley's testimony at the April 2, 2008 evidentiary hearing. Hr'g Tr. 130, Apr. 2, 2008. The instant motion
outlived the underlying dispute and has continued for several years, due largely, however, to White's involvement
in the unrelated criminal prosecutions reviewed above. While certainly an unwanted and unnecessary distraction,
the Motion for Sanctions did not apparently disrupt any aspect of the underlying dispute. Indeed, although Mottley
testified that he spent approximately 80100 hours responding to White's postings and that this was time that [he]
otherwise would be billing to another matter, including the underlying litigation, the Court can discern no impact to
the underlying case resulting from this diversion. The record reveals that during the approximately one-month
period in which the Intervening Plaintiffs' Motion for Sanctions was briefed and argued, the original trial date
remained in place and counsel settled the underlying dispute with Defendants.
Thus, the interests from which the Court derives its inherent power to sanction bad faith or contemptuous conduct
do not appear to have been affected by White's numerous postings in this matter. The lack of an impact on any
aspect of the underlying litigation reveals that White's conduct, even if performed in bad faith, did not undermine
the due and orderly administration of justice.Roadway Express, 447 U.S. at 764. The fact that he was under no
court order to remove or refrain from authoring postings similarly suggests thatalthough repugnanthis conduct
did not undermine the authority and dignity of the court. Id. Further, none of the permissible bases for sanctioning
bad faith conduct is implicated in this dispute. White's postingsthe only conduct for which relief is soughtdid
not constitute a fraud on the Court. Chambers, 501 U.S. at 45 (quoting Universal Oil Prods., 328 U.S. at 580)). Nor
does the record reveal that his conduct delay[ed] or disrupted the litigation, or that it hamper[ed] enforcement of
a court order. Id.(quoting Hutto, 437 U.S. at 689 n. 14) (internal quotation marks omitted). In the absence of any
such interference and in light of the context in which White's protected statements were made, the Court cannot
conclude that the very temple of justice has been defiled by White's out-of-court
commentary. Id. (quoting Universal Oil Prods., 328 U.S. at 580). Thus, neither the interests from which the Court
derives its inherent power to sanction, nor the bases supporting an exercise of that power, are implicated in the
instant case. These findings persuade the Court that an award of sanctions against White, based on the content of
his various Internet postings, is not an appropriate exercise of its discretion under Article III, especially in light of
White's First Amendment interest in the relevant postings.
*69 In so holding, the Court observes that there are certainly circumstances under which an individual's First
Amendment rights yield to the Court's interests in the fair and orderly administration of justice. Indeed, it is well -
established that disruptive, contemptuous behavior in a courtroom is not protected by the Constitution. In re
Contempt of Warriner, 113 Mich.App. 549, 317 N.W.2d 681, 684 (Mich.Ct.App.1982) (citing Cox v. Louisiana, 379
U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965)) (rejecting a defendant's argument that his conduct as an observer
during a bond hearingraising his fist and shouting at the conclusion of that hearingwas protected as symbolic
speech); accord Norris v. Risley, 918 F.2d 828, 832 (9 th Cir.1990) (citing Richmond Newspapers, Inc. v.
Virginia, 448 U.S. 555, 564, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (discussing trial attendees' display of Women
Against Rape buttons at the criminal prosecution of a sex crime and observing that, [w]here fair trial rights are at
a significant risk, however, the first amendment rights of trial attendees can and must be curtailed at the
courthouse door); cf. Fairey v. Tucker, U.S. , , 132 S.Ct. 2218, 2200, 183 L.Ed.2d 653,
(2012) (recognizing that a defendant can lose his right to be present at trial if, after being warned that he will be
removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom
(quoting Illinois v. Allen, 397 U.S. 337, 343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (internal quotation marks
omitted)). Additionally, in several cases of which this Court is aware, the Supreme Court has considered courts'
ability to punish contempt based on statements made outside of the courtroom that are subsequently deemed
prejudicial to the administration of justice. See, e.g., Gentile v. State Bar of Nev., 501 U.S. 1030, 1075, 111 S.Ct.
2720, 115 L.Ed.2d 888 (1991) (addressing attorney statements made to the press concerning a pending
case);Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962) (considering a county sheriff's press
release criticizing a local judge's handling of a case); Bridges v. State of Cal., 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed.
192 (1941) (reviewing statements concerning pending cases published in a newspaper); Craig v. Harney, 331 U.S.
367, 369, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947)(same). In all such cases, the Supreme Court has analyzed the
purportedly contemptuous commentary under a clear and present danger standard, which authorizes the
punishment of speech if it constitutes a serious and imminent threat to the administration of justice. Craig, 331
U.S. at 373. Under this standard, the substantive evil must be extremely serious and the degree of imminence
extremely high before utterances can be punished. Bridges, 314 U.S. at 263. In the borderline instances where it
is difficult to say upon which side the alleged offense falls, ... the specific freedom of public comment should weigh
heavily against a possible tendency to influence pending cases. Id. The Supreme Court has made clear that, in a
clear and present danger analysis, [f]reedom of discussion should be given the widest range compatible with the
essential requirement of the fair and orderly administration of justice. Id.
*70 Although there is some indication that Brandenburg 's more stringent standardincitement to imminent
lawlessnesshas displaced the clear and present danger test articulated in these earlier cases,
92
the Court
observes that some post-Brandenburgcases continue to apply the clear and present danger test to court
restrictions of speech threatening the due and orderly administration of justice, see, e.g., In re Contempt of
Dudzinski, 257 Mich.App. 96, 667 N.W.2d 68, 75 (Mich.Ct.App.2003)(concluding that a trial spectator's shirt
displaying the statement, Kourts Kops Krooks, which apparently sought to compare courts and police officers to
the Klu Klux Klan did not present a serious and imminent threat to the fair administration of justice when the
appellant sat quietly in the courtroom during a pretrial hearing outside the presence of any jury, did not disturb the
proceedings, and was not part of a large group); Matter of Frankel v. Roberts, 165 A.D.2d 382, 385, 567 N.Y.S.2d
1018 (N.Y.App.Div.1991) (concluding that Ready to Strike buttons donned by attorneys in a nonjury courtroom,
expressing a political message, clearly presented no serious and imminent threat to the administration of justice
(quoting Craig, 331 U.S. at 373)).
The Court does not, here, attempt to elucidate the precise state of the law concerning the clear and present
danger standard and its application to court action potentially violative of an individual's right to free speech.
Rather, the Court concludes that, to the extent a finding of clear and present danger to the administration of
justice may still appropriately inform its analysis of the constitutional interests involved in this case, the application
of such standard would not support an award of sanctions against White based on his Internet postings. Here,
White expressed his views in written statements published to Internet websites and there is no indication that such
statements disrupted or interfered with a Court proceeding, nor that his commentary was imminently likely to so
interfere with the Court's process. See Warriner, 317 N.W.2d at 684 (sanctioning verbal outbursts and aggressive
movements in the courtroom);see also Dudzinski, 667 N.W.2d at 7374 (distinguishing cases permitting the
restriction of trial attendees' expression, at least in part, on the presence or absence of a jury). Although the
Court's inherent power to sanction can reach conduct occurring outside of its presence, Chambers, 501 U.S. at
44, the strength of such power diminish[e]s ... as the expressions and associations sought to be controlled move
from the courtroom to the outside world. Bernard v. Gulf Oil Co., 619 F.2d 459, 466 n. 8 (5th Cir.1980).
Additionally, White's postings were largely directed to expressing his views of the underlying litigation and the
significant issuesfair housing and civil rightsinvolved therein. See Frankel, 165 A.D.2d at 387, 567 N.Y.S.2d
1018 (granting relief from a court order requiring removal of a political button from attorney lapels). Although
White's interest in including Mottley's personal, identifying information in such expression may be further from the
core of the First Amendment, Carmichael, 326 F.Supp.2d at 1290, the inclusion of such information does not
except White's online commentary from constitutional protection. Indeed, in light of the fact that White engaged in
protected speech, beyond the confines of the Court, that did not apparently interfere with the administration of
justice, the Court finds little from which to conclude that his speech presented a serious and imminent threat to the
administration of justice when it was made. Craig, 331 U.S. at 373. Accordingly, under a clear and present
danger analysis, sanctions against White based on the relevant postings would be improper.
*71 In light of the numerous cases applying the clear and present danger standard to speech that purportedly
threatens the due administration of justice, the Court expresses some doubt that strict scrutiny balancing is the
proper legal standard, as Intervening Plaintiffs contend. However, the Court observes that the result would be the
same under such an analysis.
Generally, government regulation of speech based on the content of that speech can stand only if it satisfies strict
scrutiny. United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).
For such action to survive strict scrutiny analysis, it must be narrowly tailored to promote a compelling
[government] interest. Ostergren v. Cuccinelli, 615 F.3d 263, 271 (4th Cir.2010) (citing Payboy Entm't Group, 529
U.S. at 813). This exacting standard applies to content-based restrictions to ensure that communication is not
prohibited merely because public officials disapprove [of] the speaker's view. U.S. Postal Serv. v. Council of
Greenburgh Civic Assocs., 453 U.S. 114, 132, 101 S.Ct. 2676, 69 L.Ed.2d 517 (1981) (quoting Consol. Edison Co.
v. Pub. Serv. Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980)).
Intervening Plaintiffs have proffered two compelling government interests they contend would be served by an
award of sanctions against White. First, they argue that there is a compelling government interest in ensuring that
civil rights litigants, their attorneys, and others who assist them, are able to access the courts and pursue their
claims without being subjected to bad-faith conduct designed to interfere with the lawful pursuit of civil rights.
PostRemand Br. in Supp. of Obj. 42, ECF No. 152. Second, they contend that there is a compelling government
interest in preserving the integrity of judicial proceedings, including the orderly and expeditious disposition of
cases. Id. (quoting Chambers, 501 U.S. at 44). White concedes, and the Court agrees, that preserving litigants'
access to the courts and the integrity of judicial proceedings are compelling government interests. See Br. in Opp.
to Intervening Pls.' Objections to Mag. Judge Order 12, ECF No. 185; cf. Bill Johnson's Rests., Inc. v.
N.L.R.B., 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983) (citing Cal. Motor Transp. Co. v. Trucking
Unlimited, 404 U.S. 508, 510, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972) (recognizing that the right of access to courts
is an aspect of the First Amendment right to petition the Government for redress of grievances). Indeed, these
interests are analogous to the interests from which the Court derives its inherent power to sanction bad faith or
contemptuous conduct. See Roadway Express, 447 U.S. at 764 (identifying such interests as protecting the due
and orderly administration of justice and maintaining the authority and dignity of the court).
The primary focus of strict scrutiny balancing in this instance would, therefore, be whether the award of sanctions
sought against White is narrowly tailored to serve these compelling interests. On this point, the Court would again
consider the degree to which White's postings interfered with such interests. As explained above, the Court can
discern no evidence that White's postingseven though authored in bad faithinterfered with its own interest in
the orderly and expeditious resolution of the underlying dispute. This same analysis similarly reveals no
interference with Intervening Plaintiffs' ability to access the Court. Indeed, Intervening Plaintiffs were zealously
represented in the underlying dispute, which they settled favorably during the pendency of the instant Motion for
Sanctions. Further, as counsel informed the Court, Intervening Plaintiffs successfully pursued civil claims against
White for threats and intimidation in violation of the Fair Housing act together with various Virginia statutes,
resulting in a jury verdict of $265,000 and an award of attorney's fees and costs in the amount of $592,532. Post
Remand Br. in Supp. of Obj. 2, ECF No. 152. Thus, the record reveals that Intervening Plaintiffs have enjoyed
apparently unfettered access to this Court and other courts, to quite favorable ends.
93
Accordingly, the Court finds
that White's repugnant postings, although made in bad faith, did not interfere with the identified compelling
interests. Absent evidence of such interference, the Court cannot conclude that an award of sanctions against
White would be narrowly tailored to serve either interest. See Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495,
101 L.Ed.2d 420 (1988)(citing City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 80810, 104 S.Ct. 2118,
80 L.Ed.2d 772 (1984) (A statute is narrowly tailored if it targets and eliminates no more than the exact source of
the evil it seeks to remedy.).
*72 Intervening Plaintiffs contend that a finding that White engaged in bad faith acts designed to interfere with the
two compelling interests at stake is sufficient to conclude that the sanctions they seek are narrowly tailored to
serve those interests. PostRemand Br. in Supp. of Obj. 43, ECF No. 152 (emphasis added). However, when
government action is undertaken as a means to redress past harms or to prevent anticipated harms, it must do
more than simply posit the existence of the disease sought to be cured. Turner Broad. Sys., Inc. v. F.C.C., 512
U.S. 622, 664, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (quoting Quincy Cable TV Inc. v. FCC,768 F.2d 1434,
1455 (D.C.Cir.1985)). The recited harms must be real, not merely conjectural. Id. Indeed, in Chambers, the
Supreme Court observed that the petitioner's entire course of conduct throughout the lawsuit evidenced bad faith
and an attempt to perpetrate a fraud on the court. 501 U.S. at 51. In light of such evidence, the district court's
decision to sanction him for the fraud he perpetrated on the court and the bad faith he displayed toward both his
adversary and the court throughout the course of the litigation was affirmed. Id. at 55. Thus, the sanctions
awarded in Chambers were based on both the petitioner's bad faith attempt to perpetrate a fraud on the Court and
the fact that he succeeded in such efforts. Id. Here, even if white's conduct was designed to interfere with the
underlying litigation, that it did not do so counsels against an award of sanctions under the Court's inherent power,
especially in light of the fact that such conduct is otherwise protected under the First Amendment.
Regardless of how the Court weighs the constitutional interests implicated by Intervening Plaintiffs' Motion for
Sanctions, it concludes that granting the relief sought would not be an appropriate exercise of its discretion and
inherent Article III powers. The background constitutional principles counsel the Court to practice restraint in
invoking such powers, while simultaneously demanding that speech falling within the ambit of the First Amendment
be robustly protected. Further, none of the bases enumerated in Chambers for exercising the inherent power to
sanction bad faith conduct were implicated by White's conduct. Finally, because the record fails to reveal any
disruption to the underlying litigation, nor the imminent likelihood of such disruption or interference, no clear and
present danger supports the award sought, nor would such award be narrowly tailored to serve compelling
government interests. Although the Court is sympathetic to Mottley's plight and the very real fear that White's
postings inflicted on him and his family, it does not, based on the record before it, view an award of sanctions
against White for his protected (though bad faith) speech as an appropriate exercise of its discretion. Although
White's repugnant conduct toward Mottley may indeed demand a remedy, that remedy is not properly an award of
sanctions under the Court's inherent Article III powers.
V. CONCLUSION
*73 For the foregoing reasons, Intervening Plaintiffs' Motion for Sanctions is DENIED. The Clerk is DIRECTED to
send a copy of this Opinion and Order to counsel for all parties.
IT IS SO ORDERED.
Footnotes
1
Due to the current posture of this matter, the Court DIRECTS the clerk to amend the style of this action, as
reflected in this Opinion and Order.
2
These complaints included allegations that Henry: imposed quiet time on black residents, but not white residents;
threatened to have black residents and visitors arrested as trespassers, but allowed white residents to have
visitors without similar threats; turned off the electricity of at least one black resident; made racially discriminatory
remarks to black residents; referred to children of black residents as monkeys and niggers; told the resident-
complainants that they could only have children of a certain sex living with them; and entered the apartments of
black residents when they were not at home and without justification or the residents' consent. Intervenor Compl.
15, ECF No. 25.
3
Intervening Plaintiffs filed a second motion to intervene on August 29, 2007, which modified the first motion to
redact the names of the minor claimants. ECF No. 13.
4
Although the record before this Court does not explain how White obtained the tenants' information, the Court of
Appeals for the Fourth Circuit, when reviewing White's separate conviction for transmitting threats to injure or
intimidate Intervening Plaintiffs to prevent their testimony, explained that the HUD complaints giving rise to the
underlying action had been reported in the media, and the formal complaint, which included the names of the
[Intervening Plaintiffs], was available on HUD's website. United States v. White, 670 F.3d 498, 503 (4th Cir.2012).
5
The Court repeats White's offensive letter only to establish the proper context of the events that followed:
May 23, 2007
Whiny Section 8 Nigger
15 St Apartments
Virginia Beach, VA
Re: Your complaint against Henry LLC
Dear Nigger Tenant:
I read today of your complaint against James Crockett Henry and Henry LLC. I do not know Mr [sic] Henry, but I do
know your type of slum nigger, and I wanted you to know that your actions have not been missed by the white
community.
For too long, niggers like you have been allowed to get one over on the white man. You won't work. You won't
produce. You breed and eat and turn the world around you into a filthy hole, but you won't do anything to earn or
deserve the life you live. Niggers like you are nothing new. All of Africa behaves as you dowith the difference
that, there, there is no white man to exploit, only brutal nigger dictators to give the lot of you the kind of government
you deserve.
You may get one over on your landlord this time, and you may not. But know that the white community has noticed
you, and we know that you are and will never be anything other than a dirty parasiteand that our patience with
you and the government that coddles you runs thin.
Sincerely,
/s/
Bill White, Commander
American National Socialist Workers' Party
PO Box 8601
Roanoke, VA 24014
As described below, White was convicted of intimidation to influence, delay, and prevent the tenants' testimony
against Defendants, in violation of 18 U.S.C. 1512(b)(1), in connection with this May 23, 2007 letter to Henry's
tenants. See White, 670 F.3d at 501, 50304.
6
On January 30, 2008, subpoenas were issued to the following persons and entities: William Bill A. White (also
requiring white to appear for a deposition on March 3, 2008); White Politics, LLC c/o William Bill A. White;
American Nationalist Socialist Works' Party, LLC, c/o William Bill A. White; National Socialist Movement of
Roanoke, LLC, c/o William Bill A. White; and White Homes and Land, LLC, c/o William Bill A. White.
7
The Court notes that, at the time these subpoenas were issued, Henry's deposition had not been scheduled.
Accordingly, counsel had not attempted to question Henry regarding any connection with White. Additionally, as
the Magistrate Judge noted, the Court has never been given an explanation for the nearly eight-month delay
between White's mailing of the offensive packages in May 2007 and the issuance of the subpoenas in January
2008. Mag. Judge Order 10 n.12, ECF No. 98.
8
As noted in the Magistrate Judge Order, White's March 3, 2008 deposition did not occur. Mag. Judge Order 11
n.15, ECF No. 98. Apparently, counsel for the parties were present and prepared to conduct the deposition, but
the parties were unable to resolve their dispute over the scope of the subpoenas and the related discovery
deposition.... Id.
9
The February 28, 2008 hearing was set at 8:47 a.m. on February 22, 2008. White made the posting that initially
formed the basis of Intervening Plaintiffs' underlying motion at approximately 3:55 p.m. that same day.