(Rich Galen of Mullings.com) – The attack by two Islamic gunmen on a community center in Garland, Texas has raised, again, a discussion on what is “protected speech” under the First Amendment to the Constitution and what is not protected.
Let me remind you that my total experience as a Constitutional expert starts and stops with one three-hour class at Marietta College, Marietta, Ohio 45750.
Let’s dispose of the most famous citation in the Free Speech Arena, Justice Oliver Wendell Holmes’ charge that
“The most stringent protection would not protect a man in falsely shouting fire in a theater and causing a panic.”
Note the word “falsely.” If there really were a fire in a theater, I would prefer you shout “Fire” in the clearest, loudest possible way.
My unlawerly analysis of “Free Speech” has more to do with “Uncomfortable Speech,” that is, something you say that makes me uncomfortable.
“There are too many Blacks in Obama’s Cabinet,” would fall into that category. It is not, on its face, “Hate Speech,” but it makes me uncomfortable just typing it as an example much less listening to someone say it at Starbucks.
There is a subset of “Uncomfortable Speech,” on the shelf of my personal law library. That would be “Stupid Speech.” Stupid Speech is something that is specifically and solely designed to draw a reaction from the person who is hearing it.
Standing in front of a police officer and saying “F*** Cops” is Protected, but really, really Stupid Speech.
Sponsoring, much less attending or participating in, a Muhammad cartoon festival in Garland, Texas is not far from that.
Were the organizers within their Constitutional rights to publish cartoons depicting Muhammad? Certainly. Did it serve some wider art-worldly purpose? Certainly not.
I am not, in any way, justifying the two thugs who traveled to Garland specifically to shoot people attending the exhibit. They were killed in the attempt which, in my mind, saved the State of Texas many hundreds of thousands of dollars in legal fees and confinement costs.
A famous ruling by the U.S. Supreme Court came in 1977 when the American Nazi Party announced its intention to lead a march – in full uniform with Swastikas clearly on display – through the Chicago suburb of Skokie where, according to Wikipedia, “One in six residents was a Holocaust survivor.”
Chicago and Skokie began passing laws forbidding demonstrations and/or raising permit fees with the specific intent of forbidding the march.
The ACLU brought suit on behalf of the Nazis against the Village of Skokie and the Court ruled in favor of the Nazis:
“If a state seeks to impose an injunction in violation of First Amendment rights, it must provide strict procedural safeguards, including immediate appellate review. Absent such review, a stay must be granted.”
In the end, the Nazis demonstrated in Chicago instead of marching through Skokie, but the principle of Uncomfortable Speech as being Protected was maintained.
To be more precise, the case was a “Freedom of Assembly” issue, but it’s the same First Amendment.
According to the American Bar Association,
“Hate speech is speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, disability, or other traits.”
The essay goes on to say that in American there is no right to speak “fighting words … if those words are likely to cause the listener to react violently.”
Hate Speech isn’t Hate Speech just because you hate what the person is saying or hate the person saying it. Or both.
The ABA essay points out that part of the test is whether the words “would provoke a reasonable member of the group about whom the words are spoken.”
Ah, that pesky “reasonable man test” again.
Most of us get over pressing the free speech envelope somewhere in high school when seeing how far you can go before provoking the substitute teacher in Mr. Mirandi’s 11th Grade government class leads you to the naughty bench in the Assistant Principal’s office.
Getting back to Garland, The exhibition was enclosed in a building and no one who was going to be offended needed to go. But, the organizers knew perfectly well they were pressing the edge of Free Speech.
Two potential Islamic terrorists are dead, but it was a close call. Had they gotten into the hall a lot of other people would have been killed or injured.
There is no prohibition, in the United States, of displaying depictions of religious leaders, living or dead. And I do not grant that ISIS or anyone else can demand Americans abide by their religious rules.
But, absent some broader community, society, or artistic good, why do it?
In the end, the Garland exhibition wasn’t hate speech, but it was really stupid.
Mr. Galen is a veteran political strategist and communications consultant. He blogs at www.Mullings.com.