When a public official acts like a censorious asshat, and flogs one of my least-favorite stupid pro-censorship quotes, and is named "Nutter," my fundamentally suspicious and misanthropic nature leads me to look around nervously. Am I being Akbarred here? Or is this giddy warmth and pre-pounce quivering anticipation I feel further evidence of a God that loves me?
It's the giddy warmth one.
The scene is Philadelphia. Philadelphia Magazine printed "Being White in Philly," a tedious self-indulgent piece of shit that reads like the transcript of a barstool rant. It's subtitled "Whites, race, class, and the things that never get said," and it's the sort of piece that assumes that things that don't get said are by necessity profound or credible or true. It's the sort of piece that makes you wonder if the author is engaged in some sort of performance art or satire, before you dismiss the question as not worth the effort to explore.
This is unremarkable. Long-form douchebaggery is common in American letters. Our archives are to the right if you doubt me.
What's remarkable is the reaction of the Mayor Of Philadelphia, the presciently named Michael Nutter. Nutter could have used his bully pulpit to blast the article and condemn its author as a racist and rage against the magazine for printing it. That would be the classic "more speech" reaction to speech we don't like, and I would support his right to do so. But simply using his taxpayer-sponsored megaphone wasn't enough for this Nutter. He went straight to the government thuggery, sending a letter to the "Philadelphia Human Relations Commission" demanding an investigation of Philadelphia Magazine:
Finally, I ask that the Commission consider specifically whether Philadelphia Magazine and the writer, Bob Huber are appropriate for rebuke by the Commission in light of the potentially inflammatory effect and the reckless endangerment to Philadelphia's racial relations possibly caused by the essay's unsubstantiated assertions. While I fully recognize that constitutional protections afforded the press are intended to protect the media from censorship by the government, the First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way. I ask the Commission to evaluate whether the "speech" employed in this essay is not the reckless equivalent of "shouting 'fire!' in a crowded theater," its prejudiced, fact-challenged generalizations an incitement to extreme reaction.
Rue Landau, Executive Director of the Human Relations Commission, gets the message:
Rue Landau responded to Mayor Nutter’s letter saying, “The Commissioners and I share the concerns of the Mayor regarding the racial insensitivity and perpetuation of harmful stereotypes portrayed in the Philadelphia Magazine piece. We will take up the Mayor’s charge and, as a matter of fact, we are already looking at intergroup relations in the city, particularly in changing communities.”
What a sumptuous feast of lies about the United States Constitution! The Philadelphia Magazine article is not within artillery distance of any applicable exception to the First Amendment, and it is irresponsible for a public official to suggest otherwise. As Eugene Volokh says:
The implication — which I think is very strong — that the “speech” is indeed unprotected by the First Amendment under the “incitement” exception is absolutely wrong: Under Brandenburg v. Ohio and Hess v. Indiana, the speech in the article is clearly protected. (It’s true that a narrow range of speech that is intended and likely to produce imminent illegal conduct, with imminent meaning within hours or at most a few days, rather than at some unspecified future time, is unprotected, but the magazine article definitely does not fit within that.) And it’s quite troubling, I think, when a mayor (who has power over, among others, the Police Department) suggests that the expression of opinions that he disapproves of about race is constitutionally unprotected.
Moreover, Nutter's perpetuation of the "fire in a crowded theater" cliche — the grim origins and inaccurate usage of which I have talked about before — shows that Nutter is willing to perpetuate ignorance about fundamental American rights in the course of promoting his opinion.
Nutter's defenders may say he is only calling for more speech, that the Commission is a toothless lion that will only be holding hearings that won't amount to anything and don't threaten action against the publisher. Not so. I strongly defend government actors' right to respond to ugly speech. It's a necessary part of the marketplace of ideas. That's not what is happening here. Here Nutter — unquestionably flexing his mayoral muscles, not speaking as an individual — is demanding an investigation, is making false statements about the protections offered by the First Amendment, is making bogus comparisons between clearly protected speech and unlawful incitement of imminent violence, and is implying that other consequences may flow to the author and publisher of expression he doesn't like. The threat may be understated — it may be vague — but as I often say here, vagueness in legal threats is the hallmark of thuggery and censorship. It's repulsive, and Nutter ought to be ashamed, if only he had such capacity.
Last 5 posts by Ken White
- RIP Abe Doe - October 21st, 2016
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016