Unusually Stupid McClatchy Column Gets Free Speech Wrong

It was inevitable.

I expected that in the wake of the attempted terrorist assault on a "draw Muhammad" event in Texas, people would write dumb things about speech.

American journalists have not disappointed me.

Well, they have disappointed me. But they've done it . . . . oh, you know what I meant.

This is a target-rich environment, but let's take one example: this remarkably bad article at McClatchey by Lindsay Wise and Jonathan Landay. Wise and Landay, to steal a line from The Onion, ask the question other people are too smart to ask: "After Texas shooting: If free speech is provocative, should there be limits?"

They begin by pointing out that the organizers of the Muhammad Art Exhibit arranged for extra security, suggesting that because they contemplated the risk of violence that they should not have spoken. But how is that a just or relevant standard? Would Wise and Landay approach Russian gay rights protestors and tell them to shut up because they could predict a bloody, brutal response from thugs? Would they rebuke the organizers of May Day marches, which seem reliably to produce violence by some bad actors?

Next, Wise and Landay offer their premise:

The attack highlights the tensions between protecting Americans’ treasured right to freedom of expression and preserving public safety, and it raises questions about when – if ever – government should intervene.

This is begging the question. The Texas incident only "raises questions" about government intervention with people who are willfully ignorant of the law. Even CAIR and the Southern Poverty Law Center think that the speech is clearly protected. Nobody who should be taken seriously is raising the question.

But Wise and Landay found someone to raise questions:

There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte.

I can only hope that this is a misquote. There are not "two exceptions" to the right of free speech. There are several traditional categories of speech enjoying less protection:

"From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382-383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

Moreover, "incitement" and "fighting words" are not the same thing. "Incitement" is urging others to break the law, and only falls outside the First Amendment when it is intended and likely to produce imminent lawless action. "Fighting words" are, in effect, a direct challenge to fight.

It gets worse.

“Fighting words is the idea that you are saying something that is so offensive that it will lead to an immediate breach of the peace,” Szmer explained. “In other words, you are saying something and you should expect a violent reaction by other people.”

The exhibit of cartoons in Texas might have crossed the line, Szmer said.

“I don’t think it is unreasonable to expect what they were doing would incite a violent reaction,” he said.

No. That's a bad paraphrase of the very narrow fighting words doctrine, which has been limited to face-to-face insults that would provoke an immediate violent reaction from a reasonable person. As the Supreme Court put it in one of the flag burning cases:

Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.

Then their "expert" backtracks:

On the other hand, “fighting words can contradict the basic values that underlie freedom of speech,” Szmer said. “The views being expressed at the conference could be seen as social commentary. Political and social speech should be protected. You are arguably talking about social commentary.”

But that's not right either. The test for fighting words isn't whether the words contain social commentary; it's whether they are likely to provoke an average person to immediate face-to-face violence.

It’s unlikely that the issue will be tested in the Garland case, however, because prosecutors in Texas almost certainly won’t press charges against the conference organizers, he said.

"Because the prosecutors aren't complete morons and know that this speech was protected by the First Amendment," he might have added, but didn't.

Much of the rest of the column is devoted to talking about how bad Pamela Geller is, and how the American Freedom Defense Initiative is a hate group. But this is irrelevant. You can talk to me all day about how Geller is a nasty, scary nutjob, and I'm unlikely to disagree much. But that has no bearing on whether her speech is, or should be, protected. We don't need a First Amendment to protect the soothing and the sensible.

Wise and Landay don't answer their own question about "provocation" and don't provide their readers will tools to get closer to doing so. The answer is no. Speech should not be banned because it is "provocative," as they use that word. Accepting that premise gives every hothead in the world the right to control our speech by indulging their subjective reactions to it. Wise and Landay are exploring whether drawing Mohammad should be permitted, but it's only at the whim of violent people that their question is so narrow. Nothing restrains Muslims (or anti-gay protestors, or abortion opponents, or Democrats) from cultivating a much broader list of speech that makes them violently angry. Established First Amendment exceptions are carefully defined and objective, but "provocation" as a measure of censorship cedes all authority to the offended and provoked. Can people who react violently to speech — to cartoons — be expected to be judicious in selecting the topics that will provoke them to aggression? Wise and Landay are effectively inviting people to be more violent in order to control what speech is permissible.

This is journalism?

Last 5 posts by Ken White

Comments

  1. Andrew S. says

    I'm wondering how many "Constitutional Law experts" they talked to before they found the one guy who would give them the quotes they wanted.

  2. Luke says

    So are there qualifications necessary to be a constitutional law expert or can I become one just by reading twitter and Facebook?

  3. says

    So, according to the professor, if somebody says something you don't like, all you have to do is attack that personal physically (or, more prudently, goad somebody even less stable than you into doing it) and – presto! Instant speech shutdown by the government.

    Does he even realize that's what he's saying?

  4. NOYDB says

    Actually, there was a February news article where the organizers didn't believe that the $10K they had to pay Garland for police protection was reasonable, due to the unlikelihood of a disruption. So, claiming the organizers "contemplated the risk of violence" is patently false.

  5. Eric says

    I've seen nonsensical internet arguments cite "fighting words" so often that I have no idea what it actually means. Can I use it as a defense after I punch someone? Can I be charged for calling someone's mother a whore? What the hell is the practical application?

    Maybe it's just one of those "jet fuel can't melt steel" phrases that signifies you don't need to listen to any further words from the speaker.

  6. Frank B. says

    As always, when the title of an article asks a question, the answer is no.

  7. Roman Berry says

    Journalists fretting over whether or not speech that may incite violence is or should be protected speech should maybe take a quick look at Brandenburg v. Ohio Even speech that actually advocates for and seeks to justify violence is protected. The event in Texas, as much as I personally think it was specifically designed to do exactly what it did (so that Pam Geller could get on CNN and refer to Muslims as "savages"), it wasn't a direct and imminent incitement to violence and is therefore protected speech. May not be smart speech or speech that I agree with, but if free speech means anything at all, it means that people who are contrary and outside the mainstream or even disgusting still have a right to their speech no matter what I think of it. .

  8. Wyrm says

    Too many people get the "free speech" limitations wrong.
    For some, it can get as broad as "anything I don't like should be censored, everything else (that I agree or don't care about) is allowed."
    For others, anything that can be "offensive" (guess what? nearly anything can be "offensive" to "someone" out there) should be banned.
    For others, just let fear dictate limitations: anything that a violent group might react to should be avoided.

    For all of those, the main idea that is missing is that the basic idea of "free speech" is to allow even that which you don't like, or that "someone out there" doesn't like. If you don't acknowledge that, you just don't want "free speech" because the world is made of billions of individuals that will never all agree on one thing. (Except maybe hating each other, it seems.)

    Fortunately, some people have understood that and wrote about "protecting free speech" in founding texts: Declaration of Human Rights, Constitution.
    Let's hope that those texts will be respected enough that we don't suppress them out of misplaced fear.

  9. rsteinmetz70112 says

    The real problem is the organizers are from Texas and not France plus the cops actually got the bad guys before they killed a bunch of people.

  10. says

    Yeah, it would really be nice if the media could separate the question "Is Pamela Geller an asshole?" from the question "Is it okay to shoot people just because they're assholes?" I think both of those questions are really easy to answer, and neither answer should be terribly complicated or controversial.

    (Ruben Bolling had a pretty good rebuttal to Garry Trudeau this week.)

  11. Cromwell Descendant says

    It doesn't matter how dangerous or offensive the speech is, because if that is enough to allow me to remove it from you, I will simply declare it to be that scary. This is the history of Freedom of Speech.

    Why do we have freedom of speech? So that my wingnut ancestors could talk directly to God, and publish their insane visions and manuscripts. Because if we protect the speech of the truly dangerous, and instead punish their actions when they act on said speech, then we protect society from the accusation of being wicked. Even if they choose to be. It grants us most of our personal freedom.

  12. Sheriff Fathead says

    Ken: this is utterly off topic (for which I apologise), but would you be willing to share your take (if any) on the Danièle Watts case? There seem to be two broad strains of thought:

    1. The fact that she copped a plea meant she was in fact enjoying sexytimes in public.

    2. The fact that the lewdness conduct charges were dropped in favour of disturbing the peace ("with loudness" — don't know the significance of that qualification), and that she was allowed to plead no contest, suggest that she was really being prosecuted for mouthing off at a cop.

  13. Mikee says

    RE: Sheriff Fathead

    There's nothing illegal about mouthing off to a cop, I've done it a couple times as a spectator, and even pulled a highway patrolmen over on the freeway at 2am to ask him if my other car had been towed (the only time I've ever regretted not having a flashlight.)

    But there is something extremely stupid about mouthing off to a cop while they've got probable cause that a crime has been committed by the mouth-offer.. mouther-offer? And again, speaking from experience, after being caught in some Ford-Backseat-Fun by an officer or three, not mouthing off is usually the best course of action. A contrite, embarrassed, polite attitude usually elicits a, "Get your pants on and get out of here." response.

    So I'd venture that it's option 3. A little from option 1 and a little from option 2. She got caught doing the horizontal mambo in public and mouthed off instead of displaying the expected shame, which is the only reason charges were filed.

    The lesson is that if you get caught in the act of an extremely minor violation, mouthing off always provokes an arrest, while not mouthing off gives the officer a chance to let one slide.

  14. Brian Kemp says

    s/don\'t provide their readers will tools/don\'t provide their readers with tools/

    An excellent explanation and thorough rebuttal, Ken – but I doubt you'll have any influence on the article you critique.

    Oh, to address Andrew S.:

    "I'm wondering how many "Constitutional Law experts" they talked to before they found the one guy who would give them the quotes they wanted."

    As many as it takes.

  15. Robert says

    "You can talk to me all day about how Geller is a nasty, scary nutjob, and I'm unlikely to disagree much."

    Lost me there. Goodbye.

  16. Steve Skubinna says

    Who is going to stand up for these bastards and their rights?

    Not me. I'll save my ammo for when after the jihadis behead them.

  17. Jon Marcus says

    Oooo…that Wise and Landy article makes me so angry, I'm gonna hit someone!

    Hey…that means they used fighting words! Or incitement! Or one of those magical phrases that let's me shut down their speech. Right??

  18. ukuleledave says

    The Heckler's Veto is alive in the minds of many Americans.
    What folks forget is that long ago most in the left supported free speech strongly. Now, in the name of "not offending," we hear rational people saying irrational things.

    As for the perpetrators of the violence, if they turn violent over drawing the prophet, can we really expect them to be peaceful at the next Gay Pride/Transgendered Feminist parade? And is the left willing to name the perpetrators of the violence as the ONLY ones responsible?

  19. Dustoff says

    Typical libs. Their free-speech rights are fine for them, but not you pee-ons.

  20. GWB says

    I think "fighting words" isn't really a restriction on speech, anyway. It's a defense related to the act of face-to-face violence that was provoked. There's no law against me calling your mother a whore. But, when you pop me in the schnozz, you might get a reduced sentence when you introduce my speech as evidence why any rational person would have socked me one. If I happen to adequately defend myself from your weak attempt at chivalry, and lay you out like a cold ham the day after Christmas, I am still able to say "self-defense".

  21. christopher swift says

    Did these two dimwits – and other msm types – ever consider it's not a good idea to establish the "ethical right to silence by killing" precedent?

  22. says

    @GWB:

    I think "fighting words" isn't really a restriction on speech, anyway. It's a defense related to the act of face-to-face violence that was provoked.

    That's incorrect. Fighting words is not a defense. It's a doctrine describing what kind of speech can be criminalized based on the fear of immediate violence, under laws like "disturbing the peace."

  23. Ray Van Dune says

    These journalists respect only the rights of those who are willing to kill for what they want. I am sure that the resemblance to craven cowardice is mere coincidence.

  24. says

    To all of those who are opining that Pamela Gellar is an a-hole, or as our host puts it, that "you can talk to me all day about how Geller is a nasty, scary nutjob, and I'm unlikely to disagree much," y'all are off your fricking rockers. What her event did was the most innocuous thing imaginable: they had people submit cartoon depictions of Muhammad!

    The only reason everyone in the country does not immediately understand that this is the most innocuous thing imaginable is because a couple of hundred million REAL a-holes want to commit murder over the merest slights to their own religious laws by people who do not adhere to their religion. What could be more important than challenging such an attempt to impose Islamic sharia law on the western world by acts of murder, and WHAT COULD BE MORE INNOCUOUS?

    Have you SEEN the depictions of Muhammad that Muslims have been taking as grounds for murder. They are overwhelmingly respectful, which is not at all a requirement for their being innocuous. It’s just a fact. Mere depiction of Muhammad, which is utterly commonplace in many Islamic countries, is being used as an excuse simply to establish the imposition of sharia law, to impose “submission,” which is how “Islam” translates into English.

    It’s almost as if people think that to be taken seriously on the logic and law of speech rights they have to express their distaste for Pamela, or they might be properly suspected of not analyzing objectively, but just saying what they say so as to support someone they approve of. Really folks? It’s the LEFT that thinks that way, that views EVERYTHING in ad hominem terms. “Oh, you’re on the other side, so nothing you say can be trusted.” Conservatives look at the SUBSTANCE of what a person is saying and judge whether it stands up to scrutiny.

    I would go so far as to say that it seems that conservatives in this discussion are submitting to the left wing threat of ad hominem attack. The leftists are like the Islamofascists and ad hominem attack is one of the ways they do violence against reason, and many people here are submitting! What the heck?

    Pamela, you are a champion! You and Robert and all the rest. Thank you for fighting for our rights when so many are afraid to. If I knew about your contest I would have submitted my series of “Ten Cartoonments” about orthodox Islam’s systematic violation of every one of the Ten Commandments.

  25. GeoffreyK says

    @Eric:
    I don't know what sort of crazies you've been dealing with, but since they make jet fuel storage tanks out of steel, it seems pretty safe to say that jet fuel doesn't melt steel. ;)

  26. says

    @Alec: Pardon my bluntness, but you are a dipshit.

    Pamela Geller existed before this event, and did and said things before this event. Suggesting that I must be criticizing her based on this even is either dishonest or moronic.

    My opinion of Pamela Geller, which I've expressed before, is based on a long history of behavior and rhetoric.

    I share the distaste some people have with the media's "well, it's protected, BUT . . ." rhetoric. I mentioned my personal view in a single sentence in a post about free speech, after pointing out that it's irrelevant, and STILL I have fucking pants-wetters whining about it.

    Fuck off.

  27. RK says

    What her event did was the most innocuous thing imaginable: they had people submit cartoon depictions of Muhammad!

    So you're saying it would be less innocuous if they had people submit pictures of kittens?

  28. Castaigne says

    @Robert:

    Lost me there. Goodbye.

    Really? Let me say what Ken is too polite to say. Geller is such a nasty, scary nutjob that she'd throw her own Jewish relatives in an oven if it allowed her to slaughter Muslim infants and bathe in their blood.

    And that's putting it mildly.

    =====

    @Alec Rawls:

    To all of those who are opining that Pamela Gellar is an a-hole, or as our host puts it, that "you can talk to me all day about how Geller is a nasty, scary nutjob, and I'm unlikely to disagree much," y'all are off your fricking rockers.

    I'll let this and this and this speak for why I think Gellar is a nutjob. She's free to speak – and I will hold my nose and support her ability to do so – but she's more nuts than Bachmann was and that's saying a lot.

    Pamela, you are a champion!

    A champion for instigating a crusade to exterminate every Muslim on the planet and build thrones out of their skulls, yeah.

    But hey, Westboro Baptist is free to speak too.

  29. Darrel Harb says

    @Ken

    However, your "I mentioned my personal view in a single sentence in a post about free speech, after pointing out that it's irrelevant" is a way to have your cake and eat it too. You endorse the "crazy" and "scary" ad-hominems, and you do it to place yourself on the side of the proper-thinking class that Ace excellently describes here — http://acecomments.mu.nu/?post=356555. So you get the same benefit as the "free-speech-but" people that you decry. And you even have a built in defense for your own ad hominem; that if you took the time to give a reason why Ms. Geller is a scary nutjob, that would make *you* like those bad people who get off the speech track to condemn the target of an assassination. Which is what you did, just more slickly.

    And then just for good measure you call @Alec names too.

  30. Jack B. says

    I'm currently seeing a lot of crap on Facebook about some "Flag Stomping Challenge" where people stomp on the US flag and post a video of it on YouTube.

    It's so weird seeing people recognize that cartoon depictions of Mohammed are protected speech, then turn around and brag about the ass whoopin' they'd deliver to someone if they stomped on an American flag in their presence.

  31. ES says

    Pamela, you are a champion! You and Robert and all the rest. Thank you for fighting for our rights when so many are afraid to.

    Damn straight, man.

  32. says

    You endorse the "crazy" and "scary" ad-hominems, and you do it to place yourself on the side of the proper-thinking class that Ace excellently describes here — http://acecomments.mu.nu/?post=356555. So you get the same benefit as the "free-speech-but" people that you decry.

    This is projection. And unusually insipid projection at that.

    I don't give a shit if the "proper-thinking class," whatever that is, likes my view on free speech.

    But I find Geller loathsome, and I'm not going to refrain from saying so just because it hurts some delicate fee-fees. Especially not in a post that's about free speech.

  33. Debiesam says

    Roman Berry: Pamela Geller did not refer to Muslims as savages. She used the term "savages" to describe those Muslims who, when offended, use violence and kill people. I happen to agree with her — I believe that murderers are savages. There are a great many peaceful Muslims. If you listen to the CNN interview again, you will see that Pamela mentions this — that there are many peaceful Muslims. She isn't attacking Muslims in general, only violent Muslims and the ideology that drives them to violence.

  34. Jack B. says

    Good grief, what's up with all the butthurt Pam Geller fanboys? It should come as no surprise at all that many free speech supporters find Pamela Geller to be absolutely loathsome. Larry Flynt is a creepy sonofabitch, too, but he also has the right to make fun of Jerry Falwell.

    As H.L. Mencken said:

    The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

  35. Dan Weber says

    Without taking a position on Geller for the nonce, it's fucking bizarre that it should be thoughtcrime to not like her because Muslims tried to kill her.

    If she had been killed, I'd think it was kinda bad form to say "well, she was kinda asking for it" right away (like some people did re: Hebdo before the bodies were even cold). But she's not dead, and the fucks who tried to kill people are dead instead.

  36. Castaigne says

    @Jack B.:

    Good grief, what's up with all the butthurt Pam Geller fanboys?

    There's a whole bunch of conservatives and libertarians (and some liberals, to be honest, like Sam Harris) who would like nothing better than to swan over to Muslim-land and My Lai Massacre all over the place. It's a thing. Geller pretty much functions as their cheerleader for the whole deal, so the feels get hurt pretty bad when someone slams her. Kinda like Palin fans.

  37. Castaigne says

    @Debiesam:

    She isn't attacking Muslims in general, only violent Muslims and the ideology that drives them to violence.

    And yet, Geller claims that that because Islam teaches deception, no Muslim who claims to be moderate can be trusted, and therefore there is no such thing as a "moderate" or "peaceful" Muslim. Which she was saying right up to this. I imagine she has certainly pivoted on the subject in order to gain better optics.

  38. Psmith says

    Ken, has anyone actually been successfully prosecuted for "fighting words" since Chaplinsky? I can't think of much that would "provoke an immediate violent reaction from a reasonable person" nowadays (except for threats and that sort of thing, which don't seem to be quite the same thing)–certainly not calling a cop or cops fascists like Chaplinsky did.

  39. ES says

    People who write crazy (and arguably libelous) shit like that Geller is

    "A champion for instigating a crusade to exterminate every Muslim on the planet and build thrones out of their skulls, yeah. "

    should think twice before calling anyone a "nutjob".

  40. Bob says

    I see the SOS to the Tea Party trolls and 4chan went out! Here is Ms. Geller in her own words, which is SLANDEROUS to her supporters when you quote her!

    "Obama is a third worlder and a coward. He will do nothing but beat up on our friends to appease his Islamic overlords."

    "Hussein [meaning President Obama] is a muhammadan. He's not insane … he wants jihad to win."

    "I don't think that many westernized Muslims know when they pray five times a day that they're cursing Christians and Jews five times a day. … I believe in the idea of a moderate Muslim. I do not believe in the idea of a moderate Islam."

    "Now do I see everything through the prism of Israel? No, I don't, but I do think it's a very good guide. It's a very good guide because, like I said, in the war between the civilized man and the savage, you side with the civilized man. … If you don't lay down and die for Islamic supremacism, then you're a racist anti-Muslim Islamophobic bigot. That's what we're really talking about."

    Plenty more where that came from.

  41. Castaigne says

    @ES:

    People who write crazy (and arguably libelous) shit like that Geller is

    You're bringing out the libelslander? Really? Really? HERE?

    Hey, if Geller thinks it's libelous, I dare her to file suit. Bring. It. On. I'll send Ken my IRL details and he can pass them the fuck on to her attorney. Who, I've no doubt, will burble "Govern yourself accordingly!" at me in stentorian tone.

    Anders Breivik's goddess – or any of her worshipers present – finding what I say libelous is a laugh.

  42. Jack B. says

    You're bringing out the libelslander? Really? Really? HERE?

    The people coming from that Ace of Spades HQ link might as well have taped a "KICK ME!" sign on their back upon their arrival.

  43. Guy who looks things up says

    @Alec Rawls

    It’s the LEFT that thinks that way, that views EVERYTHING in ad hominem terms. “Oh, you’re on the other side, so nothing you say can be trusted.” Conservatives look at the SUBSTANCE of what a person is saying and judge whether it stands up to scrutiny.

    How surprising that someone who can spell "INNOCUOUS" would fail to recognize the self-inflicted irony in that statement.

  44. ES says

    Yep, you're a nutjob alright, Castaigne. Thank you for making it doubly clear. Ms. Geller has better things to do with her time than go after some penniless motormouth on the internet, but your scurrilous accusation has trashed your credibility forever.

  45. Andrew S. says

    I underestimated the number of Pamela Gellar fanboys out there. I'll rile them up a bit more, because I'm bored.

    Pamela Gellar is a loathsome individual. Were she given the opportunity, she'd be the first two line up to create gas chambers for anyone she deems to be guilty of wrongthink. The whole world would be better off if she shut her mouth and crawled back into whatever slime pit she was spawned in.

    But she has an absolute right to her speech, and an absolute right to hold the event she held. And anyone saying differently is a bigger moron than she is.

  46. Echo says

    Wow, someone who rants about "hegemonic masculinity" has their head up their ass? How totally unexpected.
    I wonder when Ken will figure out that the narrative-setters who get to decide "who should be taken seriously" hate him as much as they hate this Geller person?

  47. says

    I find the whole "you're just sucking up to the narrative-setters" thing comical. It's such transparent projection.

  48. Echo says

    You're not sucking up. You just keep pointing out the truth as if you're pretending it actually means something to these people.
    It seems so utterly futile. "Old man yells at clouds, media. More at 11."

  49. Alec Rawls says

    I like Bob's list of things Pamela has said that her supporters will supposedly cry "slander" over if quoted. All are perfectly reasonable and maybe undeniable.

    "There are moderate Muslims but no moderate Islam." Well there is the tiny set of hetrodox Ahamaddiya, the only Islamic sect that rejects the sharia death penalties for apostasy and blasphemy, but they are persecuted as apostates throughout the Islamic world, their lives threatened every day.

    "Obama is a Muslim." Really, there is still anyone who doubts it? After he spent his first four years advancing the Muslim Brotherhood (the parent organization of al Qaeda) to power in Egypt, backing them explicitly and by name every step of the way? So it is simply a fact that he is an MB supporter. He gave them extreme direct support for all these years. That says he is not just a Muslim but an Islamofascist. But at the very least he is an MB supporter! So how can it possibly be even the least bit controversial amongst reasonable people to think he is actually a Muslim?

    And Geller supporters are supposed to find this view so CRAZY that we will call it slanderous for anyone to claim she actually says it?

    I think some people here need to read a lot more Geller, because you seem to be pretty ignorant of exactly those things that she is trying to expose.

  50. Rick says

    We don't need a First Amendment to protect the soothing and the sensible.

    One of your better lines!

  51. says

    Not clear to me that Szmer deserves ANY blame — it is not clear what he really said, even assuming the actual quotations are accurate, because some of the worst-sounding passages are the authors' gloss on that he said. For example, in this graf, the "two exceptions" clause is not quoted — it is the language of the authors of the article: There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte

    For all we know, Szmer in all innocence fielded a call from some writers who adapted what HE said to their own purposes. I try to be nice to reporters and answer their questions even when it is clear they don't understand, because public education is important. Maybe Szmer was victimized here too

  52. Joe says

    What's depressing to me is that, not just here, but in many other places I've seen a kind of mindless conflation of Charlie Hebdo and Pamela Gellar in terms of their substance.

    This isn't to imply there's any difference in terms of them speaking their mind without violence, or some kind of "free speech but" BS – I agree completely with the blog post, Gellar's intents are irrelevant in that respect. But there's a pretty easily identified difference in the intent between anti-racist liberals who draw Mohammad to satirize religious authority in the name of free speech as they do with all religions, and a "STOP SHARIA FROM COMING TO CALIFORNIA" loon momentarily seizing on a free speech argument to further her agenda.

    But no, either Charlie Hebdo are privileged punch-downers who just like Pam Gellar were fighting words incitement punch downing fire in a crowded theater; or, if you don't personally like Pam Gellar, you're basically excusing terrorism. The horrors of tribalism.

  53. sparkles says

    As someone so far to the left that I make Lenin look like Putin I have a question for Alec and those of his ilk.

    Why do you associate "leftists" and "progressives" with Islam fellatio?
    Where did this weird idea come from?

    All of the "leftists" I know are dyed-in-the-wool atheists who, among other things, fight passionately to free humanity from childish beliefs in thousand year old fairy tales written by successive generations of bloodthirsty kings and would-be kings.

    They probably submitted cartoons to the festival for all I know (they certainly drew them for other newspapers).

    So, what gives?

  54. Matthew Cline says

    I wonder when Ken will figure out that the narrative-setters who get to decide "who should be taken seriously"

    "narrative-setters who get to decide 'who should be taken seriously'"???

  55. Aaron says

    (and arguably libelous)

    Castaigne already mentioned this, but his statement was clear rhetorical hyperbole based on opinion, and was therefore protected speech and not defamatory… and you clearly don't come around here very often, because Ken's covered what can and cannot be libel many times over.

  56. JWH says

    If I had my druthers, people who consider a cartoon justification for violence AND people who assemble these cartoons specifically to provoke that violence would all be loaded into a spacecraft for a one-way trip to Pluto.

    Yeah, Pamela has First Amendment rights. But I still want to send her to Pluto.

  57. King Squirrel says

    Saying someone is a frothing loon if your argument is that they are a frothing loon may be ad hominem, but it is not a genetic fallacy.

    The viscosity of their frothage and where they fall on the spectrum – warm peanut, smoldering brazil, neutron-star-cashew etc. – of flaming nuttery has a direct bearing on such an argument.

    (this comment rated "neurotic, intro-to-logic, graduate assistant" on the pedantry scale)

  58. Stephen says

    Saying someone is a frothing loon if your argument is that they are a frothing loon may be ad hominem, but it is not a genetic fallacy.

    Strictly speaking, I think it would only be an ad hominem if you said that they're wrong because they're a frothing loon. /braceshimselfforflungshoes

  59. Roijtek says

    Just out of curiosity (sorry if you've commented elsewhere), what do you think of the PEN furore?

  60. barry says

    I'm a little disappointed to learn that 'Narrative-Setters' aren't really talking dogs.

  61. King Squirrel says

    @Stephen

    Strictly speaking, I think it would only be an ad hominem if you said that they're wrong because they're a frothing loon.

    Nope.

    "You are a loon." – ad hominem.
    "You are a loon, therefore your argument unrelated to your mental health staus may be ignored" – ad hominem fallacy
    "You are a loon, therefore your argument that you are not a loon is challenged." – ad hominem
    "You used 'ad hominem' and 'ad hominem fallacy' interchangeably because internet" – appeal to probability.

    (this comment rated at 400 Who?WHOM!s on the pedantry scale)

  62. ElSuerte says

    Good article and but I have a couple of criticism. First, I think Ken's article is using a hackneyed free speech trope (he should put that in his tropes v free speech article he tweeted about). It's the 'x is the worst thing since Hitler married a pony, but it's protected free speech' phrasing. Bland writing aside, it automatically concedes the non-legal argument about the speech in question. I think that's an important discussion to be had. This leads to my second point. The use of the trope makes the implicit claim that drawing Muhammad is a hate crime. While I think Ken was referring to Geller's oeuvre as a whole, when put into context with all the other coverage depicting it as a hate speech event (which was explicitly about drawing Muhammad), it's not an irrational inference that Ken was impugning such drawings.

  63. Czernobog says

    @El Suerte: Since Ken at no point makes any value judgement regarding the event itself or the drawings therein, your assertion that Ken is using the trope is simply made up. Your inference isn't so much irrational as it is dishonest.

  64. Jack B. says

    "Obama is a Muslim." Really, there is still anyone who doubts it? After he spent his first four years advancing the Muslim Brotherhood (the parent organization of al Qaeda) to power in Egypt, backing them explicitly and by name every step of the way? So it is simply a fact that he is an MB supporter. He gave them extreme direct support for all these years. That says he is not just a Muslim but an Islamofascist. But at the very least he is an MB supporter! So how can it possibly be even the least bit controversial amongst reasonable people to think he is actually a Muslim?

    I know, right? It's just like all those idiots who refuse to believe Ronald Reagan was a Muslim because of his unwavering support for the Mujahideen.

  65. RK says

    It's the 'x is the worst thing since Hitler married a pony, but it's protected free speech' phrasing. Bland writing aside, it automatically concedes the non-legal argument about the speech in question.

    Is that not the entire point of the phrasing? It's not exactly a flaw in the argument if it's the purpose of the argument.

    The use of the trope makes the implicit claim that drawing Muhammad is a hate crime.

    Yes, I often point out that things are "protected free speech" in order to claim they're illegal.

  66. ukuleledave says

    Just happy none of y'all have issues a fatwa against another. You're proving Ken's point. Respect/Like/Hate Geller but at least recognize that she does not deserve to be shot. Her would-be assassins would not deserve mercy because their feelings were hurt. They deserve NO leniency because their precious feelings were hurt. (Of course they actually got swift justice.)

    By the way, if the press insists on calling him "The Prophet," I insist that they refer to Jesus as "The Savior." Fair's fair. (Dudes, we know which Mohammed they mean.)

  67. Argentina Orange says

    Not since we were less than complimentary to Ron Paul has this sort of thing happened

    Now now, either of your "Why Do My Commentors Get Upset When I Call them Fat Basement-Dwelling Virgin Rapist Fedora Models?" posts generated a lot more responses, and faster too.

  68. Jay says

    Some people have a remarkable inability to understand the difference between "I support free speech, but [insert argument to censor speech]" and "I support free speech, including speech ridiculing others for their dumb speech." It's perfectly possible to engage in the latter while fully supporting everyone's right to continue in their respective speech.

  69. Stephen says

    @King Squirrel

    "You used 'ad hominem' and 'ad hominem fallacy' interchangeably because internet" – appeal to probability.

    Not because internet, really – I've had people use them interchangeably IRL too. Heck, even the SEP uses them interchangeably sometimes. Granted, it was an assumption, but not an unreasonable one.

    (This comment rated a 600 on the "'Die Zauberflöte' isn't an opera, but a singspiel" pedant-o-meter.)

  70. jackn says

    'Not since we were less than complimentary to Ron Paul has this sort of thing happened'

    I wish I could write a witty comment about the problems with emotions and critical thinking. These comments make wonderful case studies.

    One does have to wonder about someone that doesn't even understand how an ad hominem invalidates whatever argument they may have.

    e.g.

    I am very emotionally attached to person X and there ideas and I think they are right!

    My proof -> you suck.

  71. L says

    I don't think "ad hominem" is even its own thing. "Ad hominem" is an abbreviation for "argumentum ad hominem," which is the ad hominem fallacy.

    "You are a loon" is simply name-calling. We don't need a fancy Latin phrase for name-calling, do we?

    King Squirrel, if you have a source for your proposition that "ad hominem" means name-calling and is not just another name for the ad hominem fallacy, I'd be happy to take a look.

    Otherwise, I use "ad hominem" and "ad hominem fallacy" interchangeably because they are two terms for the same thing.

  72. jackn says

    In my mind, I use 'Attacking the person' to label the fallacy. I understand argumentum ad ….., but I do identify with the more simple labels like appeal to authority, false analogy, etc…

    see Alec Rawls, May 5, 2015 at 6:49. Probably every fallacy (except maybe attacking the person), exist in the comment. I am guessing the comment makes the commenter feel good.

  73. Argentina Orange says

    CNN's "Senior Justice Correspondent" making an ass of himself re: "Hate Speech isn't protected! Read the constitution!"

    *gets popcorn, waits for Popehat twitcannon*

  74. Castaigne says

    @ES:

    Ms. Geller has better things to do with her time than go after some penniless motormouth on the internet, but your scurrilous accusation has trashed your credibility forever.

    Penniless? Nah, I've got plenty of cash. Gellar could make a ton of me if she won. Let her sue; I've got the deep pockets.

    Nice use of scurrilous, but it doesn't trash my credibility at all. Tell you what – test it. Get in the presence of Gellar and then disagree with her slightly; say something like "I have a different viewpoint on that." Then watch the fun as she begins to foam at the mouth and accuse you of being in the pay of the Islamofascists and a Jew-hater to boot because you are not obedient to her dictates.

    Or, you know, I can just quote her direct, which is just as good.

    =====

    @sparkles:

    Why do you associate "leftists" and "progressives" with Islam fellatio?
    Where did this weird idea come from?

    Didn't you know? The homogay atheist Left are in collusion with the Islamofascists to destroy Christianity and western civilization and establish the Homogay Islamic Caliphate here in the former USA. Because there is no different between Muzzies and the Left. Did you not receive your copy of the gay agenda?

    (After all, it is well-known that all Muslims are same-sex pederasts!)
    (Less seriously, go read Free Republic sometime. It's where most of these people dwell.)

  75. ElSuerte says

    @Ken I'm a long time reader, and I've read those posts when they went live. I was talking only about the reaction to this single by people who aren't familiar with all your posts.

    @RK That was a typo, I meant to say hate speech, not hate crime.

    @Czernoborg I'm not making that inference, I'm saying that the people criticizing it are making that inference. The trope is the structure of his writing, and it's self evident. When the post is read in isolation of Ken's other work, the trope creates ambiguity because this post doesn't explicitly exempt Muhammad cartoons from the rest of Geller's nutjobery. To people who've only familiar with this post, it has the appearance of implicit moral condemnation of the cartoons. People are reacting strongly because of this misperception. I think making the moral case for the Mohammad cartoons is almost as important as making the legal case for them because of the importance of speech as defiance, and the problem of self censorship in the face of the thug's veto.

  76. philip says

    You can tell the quality of the article when one of the alleged "hate incidents targeting Muslims" was a Muslim inciting violence against Jews. Stellar research there.

  77. Theresa says

    When talking about fighting words as a reason to limit the freedom of speech one word is forgotten in the definition. "Reasonable" Without that word the definition is naught. So let's look at this shooting. Would a Reasonable person intend violence over a Cartoon? Cartoons are not something a reasonable person would even give the time of day. Yet two unreasonable persons did object. So because unreasonable people object the Freedom of Speech is to be curtailed? This episode just shows you unreasonable people give no reason to try to accommodate their sensibilities.

  78. albert says

    Ken, you really brought out the douchebags on this one.
    .
    What was the point of the Mohammed cartoon contest? I guess I missed that in all the noise. Support of 'free speech'. Was that it? Let's organize a Netanyahoo cartoon contest, and see how much traction that gets.
    .
    No, the whole point of Geller and her group is to fan the flames of anti-Muslim hatred in the US. That's all.
    .
    "Now do I see everything through the prism of Israel? No, I don't, but I do think it's a very good guide. It's a very good guide because, like I said, in the war between the civilized man and the savage, you side with the civilized man. … If you don't lay down and die for Islamic supremacism, then you're a racist anti-Muslim Islamophobic bigot. That's what we're really talking about." – Geller

    ["In any war between the civilized man and the savage, you side with the civilized man. Support Israel. Defeat Jihad."] – Geller subway ad.
    .
    So I wonder about Gellers view of the genocide in Gaza. Is that an Israel prism view?
    Apparently there's a war of the civilized versus the savages. Who declared this war?
    Apparently, we have to lay down and die for Islamic supremacism to prove we're not racist bigots.
    What side do we take in a war of savage versus savage?
    .
    I don't get the Obama thing. He's bombing the shit out of the Middle East. What else can he do? Put all American Muslims in detention camps?
    .
    Sigh.
    I don't even know where to start.
    .
    "If we don't believe in freedom of expression for people we despise, we don't believe in it at all." – Noam Chomsky
    .

  79. TBlakely says

    "You can talk to me all day about how Geller is a nasty, scary nutjob, and I'm unlikely to disagree much."

    The only scary nutjobs I see in this event are the jihadis, the jihadi apologists and those who want to throw Geller under the jihadi bus because she is willing to confront a monstrous evil head on instead of ignoring it and hoping it will go away before it gets to them.

  80. Mantarok says

    Lindsay and John's words are extremely insulting to me. I feel like they are provoking me and infringing on my free speech. Someone should censor their speech before I become violent. That will solve the problem.

  81. Dictatortot says

    Up until the Texas event, I'd only heard of Geller because of Britain's refusal to admit her (which, given their political climate, doesn't necessarily say anything bad). Perhaps I'm just thick, but even now I've yet to see any concrete examples of what's objectionable about her. Wikipedia doesn't mention anything, nor do any of the innumerable threads that've popped up since the Texas event–it's treated as a simple given among other parties that she's said or done things that are out of line. Was there anything in particular that Ken had in mind as objectionable, or anyone else?

  82. Jack B. says

    I know Geller pretty much spearheaded the campaign against the "Ground Zero Mosque". Does anyone know if she advocated using the government to prevent it from being built? I remember that Newt Gingrich did, and while Sarah Palin was opposed to the mosque, I don't think she ever advocated gov't intervention.

  83. Dictatortot says

    Jackn:

    I appreciate the link! Unfortunately, though, it still leaves me at an utter loss what concrete statements Geller's made that have people in an apparent uproar. One needn't agree with her views, obviously, but nothing the author says about her views seems grossly out of line. (And for my own part, what few specifics he does reveal of her views I heartily agree with.) Is there more to this story somehow?

  84. says

    Geller was absolutely right to oppose the "Ground Zero Mosque," which property was bought for this purpose specifically because the building was itself a part of Ground Zero, having been penetrated by the landing gear from one of the hijacked airplanes. Normal permitting processes would have blocked any religion from claiming a part of Ground Zero for the specific purpose of putting its religious stamp on the site but the normal permitting process was hijacked by Bloomberg, who thought it was important in the wake of the attack to make a welcoming gesture to Muslims.

    For the historical review part of the permit process Bloomberg pulled a sneaky and completely illegitimate trick. Instead of reviewing the sites historical relation to the 9/11 attack, as critics were demanding, he had his historical review board re-activate a long since abandoned application to get the building declared historical on the basis of some minor architectural details. They rejected that application as it stood, without considering the buildings 9/11 history, and pretended that the permitting process had dealt with the all appropriate historical review.

    It was an utterly phony process that would NEVER have been followed or allowed for any other ideological group that wanted to put its ideological stamp on Ground Zero. Imagine if Geller had bought the building to mount a truth-about-Islam center, choosing the site specifically because it had been damaged by the Islamic Pearl Harbor attack? The site would have instantly and properly been declared historical for being part of Ground Zero, and such ideological claiming of Ground Zero would have been properly barred on content neutral grounds: nobody would be allowed to claim Ground Zero for their own ideological purposes.

  85. says

    Dictatortot provides a link to a Muslim who condemns Geller for putting up bus ads that quote what Hamas television is broadcasting in the way of Islamic religious approval for killing Jews: "Killing Jews is Worship that draws us close to Allah."

    That is, she told the TRUTH about what what the Islamofascists say to justify their endless slaughtering of non-Muslims, and their special fondness for slaughtering Jews, which is absolutely in the Koran, though Geller's ad does not mention that. She just quotes that Hamas is saying, and a lot of people, even on this site, apparently think that this exposure of simple unadulterated truth is some kind of hate speech, or hateful speech.

    Seriously you've got some pretty messed up folks here, or at least some people who have been rendered ignorant and obtuse by their choice of information sources.

  86. Jack B. says

    Normal permitting processes would have blocked any religion from claiming a part of Ground Zero for the specific purpose of putting its religious stamp on the site…

    LOL

  87. Alec Rawls says

    Sorry Dictatortot. That was Jackn who provided the Jack-a link.

    As for Jack B: anybody have a clue what he is laughing about?

  88. En Passant says

    As for Jack B: anybody have a clue what he is laughing about?

    Perhaps it is this:

    It was an utterly phony process that would NEVER have been followed or allowed for any other ideological group that wanted to put its ideological stamp on Ground Zero.

    Note that Jack B. linked to the World Trade Center cross, aka Ground Zero Cross.

    Perhaps you missed that.

  89. Emily Littela says

    I really don't understand all this hate for Pamela Grier. I mean she may not have been the best actress of her generation and for the most part, looking back through the lens of time, her Blacksploitation movies have not aged well, but they are still fun to watch. Besides she was a very very sexy, oh wait what … Pamela Geller …
    Oh well that's different. Never mind.

  90. Jackson Marten says

    Ken, you are a true professional to draw this amount of internet nonsense out of the woodwork.

    Well played, sir.

  91. Brian Kemp says

    @Jack B, @En Passant:

    Thank you for reminding me (by example) to not expect people to see their religion's actions as interchangeable with another's – you know, a completely rational assumption from an atheist or otherwise-sufficiently-enlightened viewpoint. For everything else, the Satanic Temple has to come in and play the trump card, usually in the form of a coloring book.

  92. George William Herbert says

    The Satanists are tired of being used as the punching bag for these types of comparisons.

    Back to Geller, it's entirely reasonable to observe that both "sides" were completely in the wrong. One of those was just in my opinion high asshattery, and the other one attempted assassination for feels violations, which is somewhat more catastrophically wrong, but not much. Geller is inciting to pogrom.

    Some of the cartoonists are also asshats, again in my opinion, but neither my opinion nor asshattery are justifications to shut down their freedom of speech.

  93. A. Nagy says

    I havn't been to Popehat in a while but what the heck who cares if it was the devil himself who came out and organized this event.

    What I find the most annoying is that http://www.mediaite.com/tv/charlie-hebdo-cartoonists-distance-themselves-from-texas-event-no-comparison/ with his well this is just anti-Islamic we are against all religions which makes us fair somehow?

    It's like they don't understand the concept of what free-speech is.

    Winning comic http://fawstin.blogspot.com/ , ohh but wait the content doesn't matter it only matters that the person behind it has badthink so they are automatically at fault.

  94. Seth says

    The so-called "Ground Zero Mosque" was to replace a building two blocks away from the World Trade Center at 45-51 Park Place. The building was already in use for Muslim worship. It was not on the site of the World Trade Center, it was a full two blocks north.

  95. Echo says

    You think that drawing cartoons is only slightly less bad than murdering people? That's incredibly creepy, but at least you know you've got the New York Times on your side.

  96. George William Herbert says

    I don't think cartoonists are only slightly better than murder. I think that Geller's evident incitement to pogrom is only slightly better than murder (but, legal).

  97. Seth says

    Geller's asshattedness is way less bad than murder. The appropriate response to a cartoon contest is another cartoon contest with the opposite aims, editorials pointing out the rudeness, etc. Murder is many orders of magnitude worse.

  98. George William Herbert says

    Ah, so those nice folk on the radio in Rwanda, no problem, eh?

    Geller's better than that, enough to be legal, but I think it's clear she aspires.

  99. Czernobog says

    @Elsuerte "I'm not making that inference, I'm saying that the people criticizing it are making that inference. The trope is the structure of his writing, and it's self evident. When the post is read in isolation of Ken's other work, the trope creates ambiguity because this post doesn't explicitly exempt Muhammad cartoons from the rest of Geller's nutjobery. To people who've only familiar with this post, it has the appearance of implicit moral condemnation of the cartoons. People are reacting strongly because of this misperception."

    Yes, that is what they're doing, and Ken has already pointed out that they're projecting. The post doesn't condemn the cartoons, implicitly or explicitly. The cartoons themselves are uninteresting.

    "I think making the moral case for the Mohammad cartoons is almost as important as making the legal case for them because of the importance of speech as defiance, and the problem of self censorship in the face of the thug's veto."

    There is no moral case for or against Muhammed cartoons as a concept, and defiance for the sake of defiance isn't particularly important. It's important that it not be suppressed, for fear of throwing the baby with the bathwater, but I'm certain that the cartoons themselves were mostly, if not entirely, bathwater. but any discussion of their value should be done on a case by case basis, and that is not the subject of this post.

  100. ElSuerte says

    @Czernobog

    Thank you for taking the time to reply. Projecting doesn't seem like the right word. Maybe hasty generalization?

    I think it's important to note that the cartoons aren't just defiance for sake of defiance or childish rebellion. It's defiance of murderous bigots that are willing to kill to prevent the cartoons from being shown. It is especially important to do this if you value a free society. It's especially important to do this if you don't want violent and thuggish reprisals for speech to continue. If you don't read Eugene Volkh already (and I suggest you do), he's got this aphorism about the thug's veto: behavior that gets rewarded, gets repeated.

  101. Czernobog says

    @ElSuerte

    If you genuinely don't want thuggish reprisals to continue, than I agree that you mustn't acquiesce to thuggish demands. But a constructive path of action would be speech that promotes dialogue, rather than speech intended to drive home the point that you are uninterested in what the other side thinks.

    Now, the thoughts of thugs who would shoot people over cartoons are of little value, and therefore speech directed solely at them is of little value in end of itself. Speech directed at the millions of people who find irreverent treatment of their religious symbols offensive is valuable, even if it is offensive to some.

    I'll try to clarify by way of analogy: If you censor the words shit, piss, cunt, fuck, cocksucker, motherfucker, and tits, you can't have "Seven Words You Can Never Say on Television" which was a valuable and effective usage of language. Simply repeating the seven words over and over, however, is not. I would guard your right to do so, but wouldn't want to listen to it. And I have strong suspicions as to which category Geller's event falls under.

    Either way, however, this assessment would be subjective, and outside the scope of this post.

  102. L says

    I kind of want to host a "Draw Pam Geller" event, but I'm afraid Alec Rawls will show up and try to shoot up the place. If I don't host the event, am I a contemptible coward?

  103. Jack B. says

    There's another goofy article at Time entitled, "What Pam Geller Advocates Isn't Free Speech"

    I think he's arguing that Hate Speech is only protected speech when it's uttered by the right people, and Pam Geller isn't among that crowd:

    While the Islamophobe leading this hate group believes she’s a free speech champion, remarkably comparing herself to Rosa Parks, in reality America’s current free speech model developed as an attempt to protect — not demonize — religious and racial minorities. “U.S. law only began to protect hateful speech during the 1960s,” writes Garrett Epps. “Southern state governments were trying to criminalize the civil-rights movement for its advocacy of change. White Southerners claimed that the teachings of figures like Martin Luther King or Malcolm X were ‘hate speech’ and would produce ‘race war.’”

    I pointed out to the author that:
    a) Our free speech model was developed to protect everyone; and
    b) The landmark hate speech case of the 1960s, Brandenburg v. Ohio, upheld a Klansman's right to call for race war.

  104. Castaigne says

    @TBlakely:

    The only scary nutjobs I see in this event are the jihadis, the jihadi apologists and those who want to throw Geller under the jihadi bus because she is willing to confront a monstrous evil head on instead of ignoring it and hoping it will go away before it gets to them.

    Well, Geller can always join one of the private armies fighting the jihadis, but I understand she's more comfortable bloviating on a blog and inspiring guys like Anders Breivik. Hey, to each their own. Like I've said, I don't want to prohibit her speaking. I want her to speak more. And loudly. Same as I want Westboro Baptist to.

    By their words and actions shall ye know them…

  105. perlhaqr says

    There are lots of things I don't agree with you about.

    This is not one of them.

    It's nice to see commentary from other people who are as… radically devoted to the First Amendment as I am. :D

  106. Dictatortot says

    And the TIME article makes yet another linked article that doesn't specify anything terrible Geller might have said or done. Shall we go for the trifecta?

    Look, IANAL, so for all I know she might not have had a legal leg to stand on in inveighing against the Muslim center in the Ground Zero area. That might make her an unreliable legal source and questionable choice of interviewee, but not wanting it there scarcely makes her a terrible person–quite the contrary. I'm not complaining that Ken or anyone else finds her unlikable–de gustibus and all that–and some of her fans do sound a trifle overheated (which is not the same thing as being in the wrong). But it's odd and telling that no one points to anything specifically objectionable about her views.

  107. Ryan says

    A mosque was attacked sometime in the past decade. Maybe more than one mosque.

    Perhaps if Islam makes people violently angry…

  108. L says

    @Dictatortot –

    Inveighing against the Muslim center "in" the Ground Zero area is something specifically objectionable about her views.

    Also, the link jackn posted yesterday in response to your comment contains specific objections to her views.

  109. Jack B. says

    @Dictatortot:

    But it's odd and telling that no one points to anything specifically objectionable about her views.

    This might not be specific enough for you, but I'll put my two cents in.

    For starters, I certainly agree with you that Ms. Geller had every right — and reason — to be against the Ground Zero Mosque, but to the best of my knowledge, she tried to use the power of the government to stop it from being built. That hardly makes her out to be the First Amendment Hero she's making herself out to be.

    Sorry, but that's really as specific as I can get. The rest is much more general…

    Her singular focus on teh mooslims simply rings false with me. As a teenager, I lived in Libya and most of the Libyans I came in contact with were very friendly. Sure, the cops and soldiers were dickheads, but that's to be expected in a totalitarian regime.

    Post 9/11, I worked in the oilfield and worked — as well as shared living quarters — with quite a few Muslims… from places as diverse as Sudan, Indonesia, Yemen and India. I enjoyed working with them a lot more than I did with the racist rednecks who freaked out because there was a damned foreigner on the rig. All these guys spoke perfect English, but I'd be the one called out of bed after a 12 hour shift to "translate" because an Arab said "tousand" instead of "thousand". There are people on the oil rigs who would rather have an incompetent American in the Mud Logging unit rather than a well-qualified Muslim, and it pissed me off because that shit puts lives in danger, and that's the crowd Ms. Geller and her ilk pander to.

    And to be even less specific… I am in no way a fan of the Obama administration. Hell, a neo-con once told me I was being too harsh on Obama. But all that "Obama is a secret Marxist homomuslim" bullshit that she promotes is utter nonsense. The Obama administration kills just as many — if not more — Muslim civilians as the Bush administration, yet her followers still spout that Barack HUSSEIN Obama = secret Muslim bullshit. (as can be seen in the comments on this very thread)

    tl;dr version: I find Ms. Geller to be a 21st Century version of Father Coughlin.

  110. Dictatortot says

    Well, if Geller thinks that Obama's a closet Muslim, and has said as much, that would certainly make her a bit silly (to say the least). And Jack B., I can also understand your point of view, and have nothing much to say about that. I've spent time around a number of Muslims myself, and have considered most of them thoroughly pleasant people for most workaday purposes (though I wonder how well that would hold up if I were a Jew, much less an unapologetic one). For all that, though, it's not enough. I remain unconvinced that when the chips are down, being a serious practicing Muslim is ultimately compatible with being a functioning citizen of a functioning liberal society–much less one with a Bill of Rights. If the present-day U.K., France, Norway, and Sweden are any guide, it's not. And if it's that considered enmity to Islam qua Islam that makes people consider Geller a terrible person, then I suppose I'm their idea of terrible, as well. Hate it for them.

  111. Jack B. says

    I remain unconvinced that when the chips are down, being a serious practicing Muslim is ultimately compatible with being a functioning citizen of a functioning liberal society–much less one with a Bill of Rights.

    I don't disagree with you at all, but sadly, that statement applies to many natural-born Americans. If this post was about flag desecration, we'd probably see a lot of Pam Geller's supporters all of the sudden start telling us there are limits to free speech.

    Incidentally, Geller once published an article on her site that claimed that Obama is the love child of his mother and Malcolm X. Seriously. The article has since been taken down, I believe, and the only thing I can say in Geller's defense is that she didn't write the article. See here

  112. Dictatortot says

    That's priceless–it almost bridges the gap between demented political analysis and fan fiction! (Am I wrong for wanting to see a comic book where the POTUS fights evil with help from his father Malcolm as a Jor-El-like spectre?)

    Still, I'm not sure that writer is tons sillier than the sort of fellow who can find that quoted NYT passage "grotesque," or even particularly exceptionable.

  113. L says

    I remain unconvinced that when the chips are down, being a serious practicing Muslim is ultimately compatible with being a functioning citizen of a functioning liberal society–much less one with a Bill of Rights.

    And I remain unconvinced that when the chips are down, being a true Scotsman is ultimately compatible with being a functioning citizen of a functioning liberal society–much less one with a Bill of Rights.

    And I think we're both right to be unconvinced, as long as I get to define "true Scotsman" and you get to define "serious practicing Muslim."

  114. Peter B says

    Brevik did cite Geller in his "manifesto," but later said that he was running a false flag operation, pretending to be a counter-jihadist in order to discredit that movement which he thinks isn't Aryan enough, and he is actually a neo-Nazi who thinks that Europeans and jihadis have a common enemy and maybe should collaborate operationally. Or something. Of course, he's probably a paranoid schizophrenic anyway.

  115. Echo says

    Anyone remember the old post where Ken(?) went on about how it's wrong to preface every defense of speech with "I think this is abhorrent, BUT"?
    Might be from way back in '13, but I think I'll put in the work to find it.

  116. says

    Echo, perhaps you are thinking of this post, where I said:

    Whether speech is "detestable" is not pertinent to the question of whether it is protected. If a writer is moved to condemn offensive speech (or ridicule the speaker, which is more our style here), there's nothing wrong with it. But measuring the value of free speech analysis by the extent to which it condemns the speakers and soothes those offended is a distraction — and more than faintly insulting to the offended besides.

  117. barry says

    As how ad hominem attack and ad hominem fallacy are not the same but often get used that way, hate-speech and hate-speech laws are not the same either.

    It grates When people say "there is no such thing as hate-speech" when they mean "there are no such thing as hate-speech laws". It is like trying to claim there is no such thing as sarcasm just because there are no sarcasm laws.

  118. AlphaCentauri says

    Ironically, the right to freedom of speech even includes an event where the keynote speaker was anti-free-speech Geert Wilders, who advocated banning the Qu'ran in Netherlands:
    http://en.wikipedia.org/wiki/Geert_Wilders

    It would be nice there weren't so many important opinions that never get any attention, while such obvious media-whoring pushes all the right buttons to get press coverage. There would never have been enough publicity for any jihadists to even know about her exhibition if there weren't news bureaus more interested in outrageous behavior than the content of the ideas behind it. We have this wonderful freedom of the press, but all they can deliver is Kardashian-level content.

  119. James says

    I am under the impression that the Supreme Court Case:

    R.A.V. vs City of Saint Paul

    has definitively ruled that there is no 'fighting words' exception to either political or religious speech.

    Is this not correct?

  120. Alec Rawls says

    Looks like the Court in R.A.V. never reached the question of whether "fighting words" would apply in that case because the case, this question being mooted by a finding that the law was invalidated on other grounds that are reached first:

    Petitioner argued that the Chaplinsky formulation should be narrowed, such that the ordinance would be invalidated as "substantially overbroad."[7] but the Court declined to consider this argument, concluding that even if all of the expression reached by the ordinance was proscribable as "fighting words," the ordinance was facially unconstitutional in that it prohibited otherwise permitted speech solely on the basis of the subjects the speech addressed.[7]

    http://en.wikipedia.org/wiki/R.A.V._v._City_of_St._Paul

    The law tried to put limits only on certain kinds of speech, having to do with race or religion, and that was disallowed. So that’s good. It blocks those cowards who might think of trying to ban “Islamophobia” or religious criticism in general.

    As for the "fighting words" standard, it could still apply to race or religion the same as to other subjects. Legislatures just wouldn't be able to grant it special application to some areas of speech, but as Ken notes, a cartoon contest would not compel a reasonable average person to immediately launch into a physical attack so it cannot meet the "fighting words" exception to free speech in any case.

  121. says

    Instead of a "fighting words" exception to free speech, I would prefer that the Court had required and/or allowed "fighting words" as a mitigating circumstance for simple assault, strictly limited in what kind of physical response it can mitigate. "Fighting words" is a response to insult so it can only mitigate a reasonable response to insult. Not very long ago a single slap or punch of no extreme force was considered a reasonable response to someone calling your wife a slut in front of you, or calling you a greasy Wop just because you happen to be a Wop, but no ongoing assault or assault with a weapon would ever have been considered a reasonable response to insult. Even back in the dueling days, weaponized combat in response to insult was only by mutual consent.

    The problem the Court faced was that once somebody calls somebody a c@ck$u@ker in a bar, the first punch immediately leads to a furball. Can the one who goaded the fight with in-your-face insults claim no legal liability in the ensuing conflict on the grounds that he had free speech to say what he said and then only defended himself, as the law allows? But that can be answered without carving out a free speech exception. There are laws against “mutual combat,” where both people willingly engage in a fight. The fact that one person goaded the other person into a fight can be taken as consent for mutual combat. There is no reason to get into whether he had a free speech right to goad someone into mutual combat. The fact that he did so indicates his willing participation in this crime.

    When a punch thrown in response to insult does lead to a full out fight, the throwing of the punch also shows willing participation in the crime of mutual combat. What would be different in the in-your-face insult scenario under a mitigating-circumstance formulation would be the result in the case where the insulted person rsponds with one slap or punch of modest enough force and there is no ensuing furball. The insulter is rebuked, and the slapper/puncher may be charged, but if his “fighting words” claims are found to have substance then charges might be dropped or reduced or he might be cleared at trial, or given reduced punishment.

    So even for the situation it was designed to deal with, the mitigating-circumstance way of dealing with fighting words is better. But it also has the great advantage that it doesn’t have the potential for spill over that a “fighting words” exception to free speech does, where many people are now thinking that the violent response that orthodox Muslims have to what they consider “blasphemy” means that “blasphemy” should properly be considered fighting words. Hey, people are fighting over these words, and are we going to declare a whole religion “unreasonable” (just because it patently is)? There is a lot of slippery slope potential here that the mitigating-circumstance formulation eliminates.

    It wouldn’t necessarily have to be the Supreme Court that entered such a change. Congress or any state legislature could do the same thing. For the states this is implicit under the doctrine of incorporation of the Bill of Rights under the “privileges or immunities” clause of the 14th Amendment. So long as SOME system of “ordered liberty” is in place to protect the individual rights recognized by the Supreme Court, they don’t need to be protected in exactly the same way. And it would be the same at the federal level. If Congress tried to implement a better way to protect free speech, the Court would just look to see whether it was an adequate way to protect what the Court has recognized as needing protection.

    In the current atmosphere, this would be a good bill to push.

  122. Jeff Perren says

    And what about those pesky blacks in 1950s Selma, Alabama? Where do they come off inciting white racists to violence.

  123. Echo says

    Grading a work isn't policing, except to the kind of person who thinks spelling and grammar are tools of the oppressive crypto-patriarchy. :)
    His citations alone are worth the read.

  124. markm says

    The "fighting words" exception should be simply declared obsolete. In the 21st century, no reasonable American adult would respond to words with violence.

  125. barry says

    @markm There is some mixing up of reasonable people with average people in the article.

  126. Vorkon says

    I don't particularly like Geller either, but I don't think I've ever read a comment on this site by Castaigne that didn't make me want to punch him/her/it in the face. (Normally I wouldn't go there, but since this post is about "fighting words" it seemed remarkably on topic. :op)

  127. spinetingler says

    "the building was itself a part of Ground Zero, having been penetrated by the landing gear from one of the hijacked airplanes."

    By that standard, any building covered in the dust that blanketed the city and carried across the water on the breeze is "a part of Ground Zero."

  128. Castaigne says

    @markm:

    The "fighting words" exception should be simply declared obsolete. In the 21st century, no reasonable American adult would respond to words with violence

    I disagree with that entirely. I consider violence to be an acceptable response to LOTS of words.

  129. barry says

    @dew,
    The CNN Randazza article confused me. I read it twice and it still didn't help.

    It is about Bangladeshi bloggers being killed for things they said in their blogs. If it happened in America it would still not be a First Amendment issue, it would just be murder, which is already a serious crime everywhere. I didn't read any suggestion that the murders were directed by the Bangladeshi government.

    it is our responsibility to amplify their silenced voices… We need not agree with their ideas to agree that we must not let them die in vain

    No, that's not right. It is not my responsibility to amplify ideas that I do not agree with just because someone was killed for them. Killing by individuals or by the state is savage and barbaric, but that does not make the words or the views of the victims any more special than those of the living. Ideas are judged on their own values, not on the fates of their authors.

    I can agree people have a right to say things I strongly object to, but to suggest we have some duty or obligation to support, repeat, or republish ideas that we object to, or even mildly disagree with, is a step too far (and possibly nuts). I don't think that's a value America will be able to export anywhere. That's the opposite of free speech.

  130. Vorkon says

    @barry

    Randazza never called the murders in Bangladesh a First Ammendment issue. He called them a Free Speech issue. "Free Speech" is the principle that people being allowed to express their ideas freely is the best thing for society, and is a moral good in and of itself. The First Ammendment is a specific law that we use in America to ensure the government does not infringe upon the right to free speech. Free Speech, as a concept, would exist whether we had a legal principle protecting it or not. He specifies this distinction here:

    "Free speech is a global human rights issue. It is the sadly waning and fragile flame of the Enlightenment — a flame that America was tasked with protecting. We chose to do so with the First Amendment, and we have done a relatively good job of it. We could do better. We fancy ourselves as the bastion of freedom? Step up and prove it."

    If you don't consider "people being frightened into silence by the threat of murder over speaking up" a "free speech issue," then well, I don't think we have anything else to say to each other.

    As far as his statement about needing to amplify their silenced voices, I can actually understand your confusion on that front, but I think you're misunderstanding his point. He says, specifically, in the very quote that you provided yourself, that "we need not agree with them." However, this is a case in which people are committing murder in order to silence other people. If you're trying to fight against that, can you think of a better tactic than ensuring the people they are trying to silence are NOT, in fact, silenced? He's not saying you need to endorse what they are saying. He's saying that IF you believe in free speech as a principle, and want to stop the murderers who are endangering that principle, then you need to ensure that they are not silenced by said murderers.

    Moreover, look at the examples he gives of people who are not doing this: Gary Trudeau and his ridiculous anti-free speech piece, and the people who withdrew from PEN over the award given to Charlie Hebdo. (Also, note that this award is NOT endorsing anything in Charlie Hebdo, just saying that in continuing on in spite of terrorism, Charlie Hebdo is doing an excellent job of supporting free speech. It's not a "great content" award, it's an award in honor of free speech.) Do those sound like people "agreeing that people have a right to say things I strongly object to," as you say? It sure doesn't sound like they're doing that, to me.

    Do they have a RIGHT not to agree that people have a right to say things they strongly object to? Of course. But they're still wrong.

  131. Vorkon says

    One addendum to my last comment, which I forgot to add because I was in a bit of a hurry:

    Even if you disagree with what he's saying, Randazza's suggestion is hardly the opposite of free speech. If he were saying there should be laws requiring people to amplify the ideas of people who were murdered for speaking out, or that people who refuse to amplify those ideas should be killed themselves, THAT would be the opposite of free speech. Suggesting that doing so is the best tactic for stopping the people killing others over their own exercise of free speech, on the other hand? That's just what it says on the tin – a suggestion.

  132. barry says

    @Vorkon,
    I don't have a major disagreement with Randazza's argument, but some minor things grated. Defending speech we agree with is easy, and the article did seem to be using those examples as a reason to support free speech.

    Part of the article triggered a replay of the French castle scene from 'The Holy Grail'

    ARTHUR: Go and tell your master that we have been charged by God with a sacred quest. If he will give us food and shelter for the night he can join us in our quest for the Holy Grail.

    GUARD: Well, I'll ask him, but I don't think he'll be very keen… Uh, he's already got one, you see?

    Various formulations of the right to free speech with various limits have been around since at least the 1689 Bill of Rights. The American First Amendment is one of many. If you read enough blog comments you will find a disturbing number of people who think that because another country does not have a 'First Amendment' then it does not have 'free speech'. Especially those countries attempting to balance the often conflicting rights of privacy and free speech. Nowhere has unlimited free speech.

    Legal non-government silencing of speech happens all the time. People lose their jobs, their tv cooking shows, their basketball teams, their twitter accounts etc. When it's done by murder, the crime is murder, not silencing speech.

    However, this is a case in which people are committing murder in order to silence other people. If you're trying to fight against that, can you think of a better tactic than ensuring the people they are trying to silence are NOT, in fact, silenced?

    This is where the problem starts. Is it a recommended tactic only when the speech is silenced by murder? or does it also apply when it's non-lethal physical violence, or even ruthless sarcasm that silences the speech? Is the intent of the tactic to prevent murders, or to prevent the silencing of speech?

    Also, quite importantly when considering tactics, is it a tactic that even works for either?

    If an anti-vaccination crusader is shot while handing out pamphlets, many reasonable people will not be inclined to republish anti-vaccination propaganda just for the sake of free speech. So that makes it a tactic for supporting specific speech that you agree with rather than free speech generally.

    That's just what it says on the tin – a suggestion.

    That's fine then. It works as a suggestion rather than as a moral imperative. And a better suggestion when you agree with the speech.

  133. The Wanderer says

    If you read enough blog comments you will find a disturbing number of people who think that because another country does not have a 'First Amendment' then it does not have 'free speech'.

    Or at least that it doesn't have a guaranteed right to free speech, though that isn't quite the same sort of claim.

    I've seen it cited somewhere (I think on this very blog) that a Canadian official has explicitly stated that "Free speech is an American principle, and has no place in Canadian jurisprudence", or words to that effect… which may only prove your point, as that's certainly a disturbing thing to see claimed, but I don't think you were mainly referring to people in the other countries as thinking this.

    Is the intent of the tactic to prevent murder, or to prevent the silencing of speech?

    If I'm not mistaken, the intent of the tactic is to discourage people from thinking that committing certain crimes (including murder) will be effective in silencing speech, and thereby to remove the added incentive to commit such crimes which thinking that apparently provides them. (Some people would be willing to be arrested, convicted, and even executed in exchange for achieving their ideological goals; that tradeoff becomes much less worthwhile when the goals will not be achieved.)

    I think the actual answer to your question, when all analysis is done, is "both".

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