Finding the First Amendment

A draw-Muhammad cartoon contest is staged in Garland Texas. Two ISIS terrorists show up with automatic weapons intending to massacre the assemblage. A single guard guns them down with a pistol, narrowly averting mass carnage.

The post-attack response, even including conservative stalwarts, is to condemn not just the would-be assassins, but the speakers and the cartoons presented at the conference. Yes, critics say, of course the speakers have First Amendment free speech constitutional rights, but they offended Muslims around the globe. They asserted that such “hate speech” is not protected by the First Amendment.

Repair, then, to the text of the First Amendment—as the lawyers say, in pertinent part: “Congress shall make no law… abridging freedom of speech, or of the press.…” About a century ago the Supreme Court began selectively “incorporating” specific clauses of the Bill of Rights to apply also to the States, including all the First Amendment.

In Chaplinsky v. New Hampshire (1942) the Supreme Court held that so-called “fighting words” are not protected by the First Amendment; the speaker in that case had called the mayor of Rochester a ”damned fascist” and “damned racketeer.” The Court explained this category of unprotected speech:

There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

Over the past seven decades Chaplinsky has been eroded. Thus, in Cohen v. California (1972) a protester walked into a Los Angeles courthouse wearing a jacket emblazoned with “F[–]k the Draft”; the Court ruled this protected speech, with Justice John M. Harlan airily pronouncing that “… it is often true that one man’s vulgarity is another’s lyric.”

Such notwithstanding, most everyone agrees with what Justice Oliver Wendell Holmes penned in Schenck v. USA (1919) as to shouting “Fire!” in a crowded theater; most agree also with the “clear and present danger” test he articulated for suppressing speech:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

The 1977-1978 confrontation in Skokie, Illinois showed the best way to oppose offensive speech: by a counter-demonstration protesting the original. The Nazi party had announced a march targeting a town where thousands of residents were Jewish survivors of Nazi concentration camps; many woke up screaming each night. A spate of lawsuits were filed in a futile effort to get the courts to stop the march; but while court challenges failed, the publicity attending them rallied public opinion and galvanized opposition. The Nazis decided to jettison their original plan. Instead they marched in Chicago.

Fast forward to the present, with the recent event in Garland. The winning cartoon depicts a turbaned Muhammad, scimitar raised, scolding an artist, saying “You can’t draw me!” The artist replies: “That’s why I draw you.” Hardly legally offensive, this cartoon pales compared to the savage caricatures of legendary 19th century cartoonists such as Thomas Nast and Honoré Daumier. Take a gander at a Nast cartoon skewering Boss Tweed’s Tammany Hall machine, and at a Daumier cartoon assailing German militarism.

Megyn Kelly interviewed First Amendment scholar Eugene Volokh on the May 6 Kelly File, injecting much-needed sanity into what lamentably has been a shockingly sterile debate. Prof. Volokh said that “provocative” speech at the event is “an act of defiance”; it has value in stating that “we are not going to be shut up.” He referenced the winning cartoon as showing that “you cannot tell Americans, you cannot tell a free people what you can and cannot say.”

To get an idea of the evil arrayed against the conference, watch this riveting exchange on Hannity between event organizer Pamela Geller and a radical imam. The imam openly states that he would have Geller tried in a Sharia court, and if convicted she should be executed for blasphemy against Islam.

The lost lesson is this: It is vital to separate peaceful from violent attempts to silence speakers. Harsh verbal criticism free from threats of force must be equally legally permissible as the speech being protested. But violence, or any threat to use any form of force, should be placed on a separate plane. Defenders of free speech must not equivocate. Saying that one disapproves of violent acts designed to suppress speech but also condemns the speaker for provoking an attack inevitably invites more terrorist violence.

Thus encouraged, extremists will push the bounds of what offends them as far as they can. If we indulge their designedly hyper-amplified sensitivities, we will find ourselves with the most narrowly confined boundaries of permissible speech when we most need maximum freedom. Our worst enemies cannot be allowed to dictate the protected ambit of our Constitution’s freedom of speech.