In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2916
U NITED S TATES OF A MERICA,
Plaintiff-Appellant,
v.
W ILLIAM W HITE,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08-CR-851—Lynn S. Adelman, Judge.
A RGUED JANUARY 12, 2010—D ECIDED JUNE 28, 2010
Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
P ER C URIAM. A superseding indictment alleged that
William White was the founder and content provider of
a website that posted personal information about a
juror who served on the Matthew Hale jury, along with
postings calling for the use of violence on enemies of
white supremacy. In connection with these postings,
White was charged with soliciting a crime of violence
in violation of 18 U.S.C. § 373. The district court dis-
2 No. 09-2916
missed the indictment, holding that White’s internet
posting could not give rise to a violation under § 373
because it was protected by the First Amendment. Because
we find that the indictment is legally sufficient to state
an offense, we reverse the district court’s dismissal.
I. BACKGROUND
According to the government’s indictment, William
White created and maintained the website Overthrow.com.
Overthrow.com was affiliated with the “American Na-
tional Socialist Workers Party,” an organization com-
prised of white supremacists who “fight for white
working people” and were “disgusted with the general
garbage” that the white supremacist movement had
attracted. White used the website to popularize his
views concerning “non-whites, Jews, homosexuals, and
persons perceived by white supremacists as acting con-
trary to the interests of the white race.” On multiple
occasions, White advocated that violence be perpetrated
on the “enemies” of white supremacy and praised
attacks on such enemies.
A repeated topic on his website was Matthew Hale, the
leader of a white supremacist organization known as
the World Church of the Creator. In January 2003, Hale
was charged with soliciting the murder of a federal
district court judge and obstruction of justice. Hale was
convicted of two counts of obstruction of justice and
one count of solicitation and sentenced to 480 months’
imprisonment. Specifically related to the Matthew Hale
trial, White wrote on his website in March 2005 that
No. 09-2916 3
“everyone associated with the Matt Hale trial has
deserved assassination for a long time.” He also wrote
a posting naming individuals involved or related in
some way to Hale’s conviction, such as federal agents
and prosecutors and other citizens advocating for Hale’s
arrest, stating that any of them may be the next targets
of an “unknown nationalist assassin.” White did not
publish their personal information in that post because
he felt “there is so great a potential for action.”
On September 11, 2008, White posted personal informa-
tion about the foreperson of the jury in the Hale trial
(“Juror A”). At the time of the posting, Overthrow.com
was an active website, and as such, each link and posting
was contemporaneously accessible. So, a reader of this
September 11 posting would have had access to the
past posts about Hale, Hale’s trial, and other calls
for violence against “anti-racists.” The September 11
entry by White was entitled “The Juror Who Convicted
Matt Hale.” It identified Juror A by name, featured a
color photograph of Juror A and stated the following:
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].
On the following day, White posted a follow-up entry
entitled “[Juror A] Update—Since They Blocked the first
photo.” This posting contained all the same information as
above, with the added sentence, “Note that [University A]
4 No. 09-2916
blocked much of [Juror A’s] information after we linked
to [his/her] photograph.”
On October 21, 2008, a federal grand jury returned a one-
count indictment charging White with soliciting a crime
of violence against Juror A, in violation of 18 U.S.C. § 373.
On February 10, 2009, the grand jury returned a super-
seding indictment, maintaining the single charge of
solicitation and adding additional examples of the cir-
cumstances corroborating the defendant’s intent to
solicit a crime of violence against Juror A. The super-
seding indictment charged that:
2. From on or about September 11, 2008, through
at least on or about October 11, 2008, in the North-
ern District of Illinois, Eastern Division, and else-
where, WILLIAM WHITE, defendant herein,
with intent that another person engage in
conduct constituting a felony that has as an ele-
ment the use, attempted use, or threatened use
of force against the person of Juror A, in violation
of the laws of the United States, and under cir-
cumstances strongly corroborative of that intent,
solicited and otherwise endeavored to persuade
such other person to engage in such conduct; in
that defendant 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.
3. It was part of the solicitation, inducement, and
endeavor to persuade that on or about Septem-
No. 09-2916 5
ber 11, 2008, defendant WILLIAM WHITE caused
to be displayed on the front page of
“Overthrow.com” a posting entitled, “The Juror
Who Convicted Matt Hale.”
...
5. The above-described solicitation, inducement,
and endeavor to persuade occurred under the
following circumstances, among others, strongly
corroborative of defendant WILLIAM WHITE’s
intent that another person engage in conduct
constituting a felony that has as an element the
use, attempted use, or threatened use of force
against the person of Juror A . . . .
White moved to dismiss the superseding indictment
on the grounds that it violated the First Amendment,
and on July 22, 2009, the district court granted White’s
motion to dismiss. The government timely appealed.
II. ANALYSIS
A. Indictment Valid on Its Face
The government argues on appeal that the superseding
indictment is legally sufficient to charge the offense of
solicitation. We review questions of law in a district
court’s ruling on a motion to dismiss an indictment
de novo. United States v. Greve, 490 F.3d 566, 570 (7th
Cir. 2007); United States v. Risk, 843 F.2d 1059, 1061 (7th
Cir. 1988). An indictment is legally sufficient if it (1) states
all the elements of the crime charged; (2) adequately
6 No. 09-2916
informs the defendant of the nature of the charges so
that he may prepare a defense; and (3) allows the defen-
dant to plead the judgment as a bar to any future pros-
ecutions. See Fed. R. Crim. P. 7(c)(1); United States v.
Smith, 230 F.3d 300, 305 (7th Cir. 2000). An indictment
is reviewed on its face, regardless of the strength or
weakness of the government’s case. Risk, 843 F.2d at 1061.
One that “tracks” the words of a statute to state the
elements of the crime is generally acceptable, and while
there must be enough factual particulars so the defendant
is aware of the specific conduct at issue, the presence
or absence of any particular fact is not dispositive.
Smith, 230 F.3d at 305.
Applying these standards, the indictment here is
legally sufficient. Title 18 of the United States Code,
section 373(a) provides, in pertinent part:
Whoever, with intent that another person engage
in conduct constituting a felony that as an element
the use, attempted use, or threatened use of physi-
cal force against property or against the person of
another in violation of the laws of the United
States, and under circumstances strongly corrobo-
rative of that intent, solicits, commands, induces,
or otherwise endeavors to persuade such other
person to engage in such conduct.
In a solicitation prosecution, the government must estab-
lish (1) with strongly corroborative circumstances that
a defendant intended for another person to commit a
violent federal crime, and (2) that a defendant solicited or
otherwise endeavored to persuade the other person to
No. 09-2916 7
carry out the crime. 18 U.S.C. § 373(a); see United States v.
Hale, 448 F.3d 971 (7th Cir. 2006). A list of non-exhaustive
corroborating circumstances of the defendant’s intent
include whether the defendant repeatedly solicited the
commission of the offense, the defendant’s belief as to
whether the person solicited had previously committed
similar offenses, and whether the defendant acquired the
tools or information suited for use by the person solic-
ited. United States v. Gabriel, 810 F.2d 627, 635 (7th
Cir. 1987) (citing S. R EP. N O . 97-307, at 183 (1982)).
The indictment here tracks the language of the
statute, and lists each element of the crime. It charges
White with having the intent for another person to
injure Juror A, and soliciting another person to do so. It
provides corroborating circumstances of White’s intent.
As one example of his intent, the government points to
the re-posting of the information once action was taken
by Juror A’s employer to remove his picture from
public access. As another, the government argues that
White knew the persons solicited were prone to violence.
The indictment properly charges a federal solicitation
because injuring a juror for rendering a verdict is a
federal offense under 18 U.S.C. § 1503. Finally, by
adding factual allegations and dates, it makes White
aware of the specific conduct against which he will have
to defend himself at trial. In judging the sufficiency of
this indictment, we do not consider whether any of the
charges have been established by evidence or whether
the government can ultimately prove its case. United
States v. Sampson, 371 U.S. 75, 78-79 (1962); Smith, 230 F.3d
at 305. We only look to see if an offense is sufficiently
8 No. 09-2916
charged, and on its face, this indictment adequately
performs that function.
B. No First Amendment Violation
Having found that the face of the indictment is legally
sufficient to charge White with solicitation, our inquiry
would ordinarily end. But the district court held that
the indictment’s allegations could not support a prosecu-
tion under 18 U.S.C. § 373 because White’s internet
posting was speech protected by the First Amendment.
As detailed below, this potential First Amendment con-
cern is addressed by the requirement of proof beyond
a reasonable doubt at trial, not by a dismissal at the
indictment stage.
The First Amendment removes from the government
any power “to restrict expression because of its message,
its ideas, its subject matter, or its content.” Ashcroft v.
ACLU, 535 U.S. 564, 573 (2002) (quotation marks omit-
ted). Even speech that a “vast majority of its citizens
believe to be false and fraught with evil consequence[s]”
cannot be punished. Whitney v. California, 274 U.S. 357,
374 (1927). This broad protection ensures that the right
of the Nazi party to march in front of a town hall is pro-
tected, Collin v. Smith, 578 F.2d 1197, 1202 (7th Cir. 1978),
as is the right of an individual to express an unpopular
view against the government, Texas v. Johnson, 491 U.S.
397, 419-20 (1989) (holding that the First Amendment
protects the expressive act of flag burning). In Brandenburg
v. Ohio, the Supreme Court invalidated a state statute
targeting people who “advocate or teach the duty, neces-
No. 09-2916 9
sity, or propriety” of violence as a means of accomp-
lishing reform, and held that even certain statements
advocating violence had social value and received First
Amendment protection. 395 U.S. 444, 448 (1969). At issue
were Ku Klux Klan members’ statements such as, “we’re
not a revengent organization, but if our President . . .
continues to suppress the white, Caucasian race, it’s
possible that there might have to be some revengeance
taken.” Id. at 446. The Supreme Court held that “the
constitutional guarantees of free speech and free press do
not permit a State to forbid or proscribe advocacy of the
use of force . . . except where such advocacy is directed
to inciting or producing imminent lawless action and is
likely to incite or produce such action.” Id. at 447. Speech
related to the expression and advocacy of unpopular,
and even violent ideas, receives Brandenburg protection.
Although First Amendment speech protections are far-
reaching, there are limits. Speech integral to criminal
conduct, such as fighting words, threats, and solicita-
tions, remain categorically outside its protection. United
States v. Williams, 553 U.S. 285, 297 (2008) (“Offers to
engage in illegal transactions are categorically excluded
from First Amendment protection.”). This type of speech
“brigaded with action” becomes an overt act or conduct
that can be regulated. Brandenburg, 395 U.S. at 456 (Black,
J., concurring). For this reason, a state cannot forbid
individuals from burning crosses to express an opinion,
but it can forbid individuals from burning crosses with
the intent to intimidate others. See Virginia v. Black, 538
U.S. 343, 365-66 (2003). In the case of a criminal solicita-
tion, the speech—asking another to commit a crime—is the
10 No. 09-2916
punishable act. Solicitation is an inchoate crime; the crime
is complete once the words are spoken with the requisite
intent, and no further actions from either the solicitor
or the solicitee are necessary. See Wayne R. LaFave, 2
Substantative Criminal Law § 11.1 (2d ed. 2009). Also, a
specific person-to-person request is not required. United
States v. Rahman, 189 F.3d 88, 117-18 (2d Cir. 1999).
For example, in United States v. Sattar, a district court,
without requiring any evidence or allegations of further
acts, found sufficient an indictment where the alleged
solicitation consisted of a generally issued fatwa urging
Muslims to “fight the Jews and to kill them wherever
they are.” 272 F. Supp. 2d 348, 373-74 (S.D.N.Y. 2003). In
United States v. Rahman, Rahman was convicted of
soliciting violence based on his public speeches calling
for an attack on military installations and the murder of
an Egyptian president. 189 F.3d at 117. Furthermore,
that a request for criminal action is coded or implicit
does not change its characterization as a solicitation. In
United States v. Hale, this court held sufficient evidence
existed to uphold a solicitation conviction where Hale
never explicitly asked his chief enforcer to do anything.
He simply asked his chief enforcer to locate a judge’s
home address and made statements such as “that infor-
mation’s been pro-, provided. If you wish to, ah, do
anything yourself, you can, you know?” 448 F.3d 971, 979
(7th Cir. 2006). Hale’s multiple attempts to distance
himself from any illegal actions with statements such as
“I’m gonna fight within the law” and “I can’t take any
steps to further anything illegal,” were not enough to
overturn the solicitation conviction. Id. We held that a
No. 09-2916 11
rational jury could have inferred his true intention from
the evidence, regardless of any coded or disguised lan-
guage. Id. at 984-85.
So, whether or not the First Amendment protects
White’s right to post personal information about Juror A
first turns on his intent in posting that information. If
White’s intent in posting Juror A’s personal information
was to request that one of his readers harm Juror A, then
the crime of solicitation would be complete. No act
needed to follow, and no harm needed to befall Juror A. If,
on the other hand, White’s intent was to make a political
point about sexual orientation or to facilitate oppor-
tunities for other people to make such views known to
Juror A, then he would not be guilty of solicitation be-
cause he did not have the requisite intent required for
the crime.
White argues that NAACP v. Claiborne Hardware Co., 458
U.S. 886 (1982), stands for the proposition that the
only permissible view of his posting is to see it as a con-
stitutionally protected expression and subject to the
Brandenburg test. In Claiborne, black citizens of Claiborne
County, Mississippi, sent a letter to white merchants
with a list of particularized demands for racial equality
and integration. After receiving an unsatisfactory re-
sponse, they began a boycott that lasted years. Several
of the white merchants sued members of the boycott to
recover losses and enjoin further boycott activity, and won.
The Mississippi Supreme Court upheld liability as to 92
participants by finding that members had agreed to use
force, violence and threats to ensure compliance with
the boycott, but the Supreme Court reversed, holding
12 No. 09-2916
that an individual could not be held liable for his mere
association with an organization whose members
engage in illegal acts. Id. at 920. Claiborne primarily
focused on the constitutionality of group-based liability,
but it also concluded that Charles Evers, the field secretary
of the NAACP and chief proponent of the boycott at the
time, could not be held liable based on his “emotionally
charged rhetoric.” Id. at 928. In speeches given before
and during the boycott, Evers stated that there would be
“discipline” coming to those who did not participate in
the boycott, and that any “uncle toms” would “have their
necks broken.” Id. at 900 n.28.
White reads too much into Claiborne. A careful reading of
the Court’s analysis of Evers’s liability does not provide
the support White believes it does. Given that the
speeches were mainly an “impassioned plea” for unity,
support, and nonviolent participation in the boycott,
and the few choice phrases were the only example of
threatening language, the Court found there was no
evidence that Evers authorized violence or threatened
anyone. In this context, the speeches did not exceed the
bounds of Brandenburg-protected advocacy and could not
be the basis of liability. But, the Supreme Court acknowl-
edged that there would be no constitutional problem with
imposing liability for losses caused by violence and
threats of violence, id. at 916, and that if there was
evidence of such “wrongful conduct” the speeches could
be used to corroborate that evidence, id. at 929.
White’s argument boils down to this: his posting
was not a solicitation and because it is not a solicitation, it
No. 09-2916 13
is speech deserving of First Amendment protection. The
government sees the posting in the opposite light: the
posting and website constitute a solicitation and as
such, fall outside the parameters of First Amendment
protection. This dispute turns out not to be an argument
about the validity of the indictment in light of
the First Amendment, but is instead a dispute over the
meaning and inferences that can be drawn from the
facts. The government informed us at oral argument that
it has further evidence of the website’s readership, audi-
ence, and the relationship between White and his
followers which will show the posting was a specific
request to White’s followers, who understood that
request and were capable and willing to act on it. This
evidence is not laid out in the indictment and does not
need to be. Sampson, 371 U.S. at 78-79; Smith, 230 F.3d at
306. The existence of strongly corroborating circum-
stances evincing White’s intent is a jury question. Hale,
448 F.3d at 983. Of course, the First Amendment may
still have a role to play at trial. Based on the full factual
record, the court may decide to instruct the jury on the
distinction between solicitation and advocacy, and the
legal requirements imposed by the First Amendment. See,
e.g., United States v. Freeman, 761 F.2d 549, 552 (9th Cir.
1985). The government has the burden to prove, beyond
a reasonable doubt, that White intended, through his
posting of Juror A’s personal information, to request
someone else to harm Juror A. After the prosecution
presents its case, the court may decide that a reasonable
juror could not conclude that White’s intent was for
harm to befall Juror A, and not merely electronic or
14 No. 09-2916
verbal harassment. But, this is not a question to be
decided now. We have no idea what evidence or testi-
mony will be produced at trial. The government has laid
out the elements of the crime and the statute that White
is accused of violating, along with some specific factual
allegations for support, and that is all it is required to
do. The question of White’s intent and the inferences
that can be drawn from the facts are for a jury to decide, as
the indictment is adequate to charge the crime of solicita-
tion. The indictment is legally sufficient and should not
have been dismissed.
III. CONCLUSION
We R EVERSE and R EMAND for further proceedings
consistent with this opinion.
6-28-10