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
- Update on The Popehat Podcast - November 30th, 2016
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- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016