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21 January 2015

Um, No, ProMo Cartoons Aren't 'Fighting Words'

This must be addressed.  According to USAToday's  DeWayne Wickam, Mocking Mohammed Crosses The Line:

The French, of course, are no more bound to accept the findings of the bishop of Rome than they are to be guided by the Supreme Court’s rulings on our Constitution’s free speech guarantee. But given the possible ripple effects of Charlie Hebdo’s mistreatment of Islam’s most sacred religious figure, at least people in this country should understand the limits America’s highest court has placed on free speech. 
In 1919, the Supreme Court ruled speech that presents a “clear and present danger” is not protected by the First Amendment. Crying “fire” in a quiet, uninhabited place is one thing, the court said. But “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” 

Um, no, the 'clear and present danger' standard was rejected by the Court in Brandenburg v Ohio, 395 U.S. 444 (1969).

Held: Ohio's criminal syndicalism statute violated the First Amendment, as applied to the state through the Fourteenth, because it broadly prohibited the mere advocacy of violence rather than the constitutionally unprotected incitement to imminent lawless action.

Twenty-two years later, the Supreme Court ruled that forms of expression that “inflict injury or tend to incite an immediate breach of the peace” are fighting words that are not protected by the First Amendment.
If Charlie Hebdo’s irreverent portrayal of Mohammed before the Jan. 7 attack wasn’t thought to constitute fighting words, or a clear and present danger, there should be no doubt now that the newspaper’s continued mocking of the Islamic prophet incites violence. And it pushes Charlie Hebdo’s free speech claim beyond the limits of the endurable.

Chaplinsky had to do with the issue of whether statutes criminalising certain 'fighting words' uttered IN THE FACE/CLOSE PRESENCE OF ANOTHER IN REAL TIME , such as a police officer, which thereby resulted in a 'disturbance of the peace' were constitutional. The case did not set apart classes of speech that could never be constitutional, per se.  The rule has to do more with time and place restrictions than the lack of protection given to certain types of speech.

If Mr Chaplinsky had published an article making the same statements, he could not have faced criminal persecution (and, I use that word intentionally, as you will see).  Allegedly, it was his 'offencive speech' in the face of a cop that led to the charges.  Does anyone think that screaming the words 'Fvck ya Momma!' is unprotected speech?  Really?

The truth of the matter as it pertains to Chaplinsky is that it is far from probable that the Court would come to the same decision today.  Recall that utterances like:

1. 'President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself', United States v Stickrath, 242 F. 151 (SD Ohio 1917);

2.  'Wilson is a wooden-headed son of a bItch. I wish Wilson was in hell, and if I had the power I would put him there', Clark v United States, 250 F. 449 (C. A. 5th Cir. 1918); and, 

3. Posters demanding people 'Hang Roosevelt', United States v Apel, 44 F. Supp. 592, 593 (D.C. N. D. Ill. 1942),  

...all resulted in convictions, BUT the conviction for saying this: 

'They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is LBJ!'

... was OVERTURNED, Watts v United States, 394 U.S. 705 (1969).

In other words, the Court has moved towards MORE free speech, not less. 

I'd love to get Mr Wickam's opinion on Hustler Magazine, Inc. v Falwell, 485 U.S. 46 (1988), an 8-0 decision. 

If cartoons depicting a non-living ProMo can be construed as 'fighting words', then surely one depicting a famous, living person (at the time) having sex with his mum in an outhouse surely would be, too, right

Of course, Jerry Falwell LOST that case at the Supreme Court.

I wonder if Mr Wickham and others would agree with the conviction of Mr Chaplinsky if they knew what had given rise to the arrest...

Per UCLA professor Gary Blasi: 

While preaching, Chaplinsky was surrounded by men who mocked Jehovah's Witnesses members' objections to saluting the flag. One man attempted to hit Chaplinsky in full view of the town marshal, who warned Chaplinsky that he was in danger but did not arrest his assailant. After the marshal left, another man produced a flagpole and attempted to impale Chaplinsky; while Chaplinsky was pinned against a car by the pole, other members of the crowd struck him. A police officer arrived and, rather than dispersing the crowd, took Chaplinsky into custody.
En route to the station, the officer, as well as members of the crowd, insulted Chaplinsky and his religion. Chaplinsky responded by calling the town marshal, who had returned to assist the officer, a "damn fascist and a racketeer" and was arrested for the use of offensive language in public.

Be careful what you wish for because a whole lot of Occupy and #BlackLivesMatter protesters could wind up in jail.

True, crying 'Fire!' in a crowded theatre is not protected by the First Amendment, but the rule only applies to FALSELY screaming fire in a crowded theatre, which too many in the media, especially, neglect to mention. Reasonable people would fear for their lives and rush to get out of danger if 'Fire!' was screamed in a crowded theatre that was or was not on fire.  But, yelling 'Fire!', would not only be protected speech, one could easily assert that there is, at the very least, a moral DUTY to scream such in a crowded theatre THAT IS ACTUALLY ON FIRE.  

And, herein lies the problem with arguing that mocking or criticising Islam is a 'clear and present danger' that may result in violence and, thereby, should be prohibited:  Many people believe that their criticism of Islam IS a moral duty.  They may be trying to warn about the treatment of women, girls, and homosexuals in the Muslim world.  They maybe speaking what is actually in the Qur'an.  Undoubtedly, there are many Muslims around the world who would be highly offended not only by mockery, but criticism.  A whole lot of Muslims refuse to acknowledge the Armenian Genocide.  Would a cartoon mocking such beliefs be incitement even though it is true?  Probably, but so what?  How Far Are You Willing To Go In Order Not To Offend?

In Europe, speaking the TRUTH about Islam or Islamic regimes can get one a prison sentence.  Under the brainchild of Hillary Clinton and the Organisation for Islamic Cooperation, UN Resolution 16/18 and the Rabat Plan of Action, even truthful criticism of Islam would be criminalised.  Only the 'feelings' of Muslims would be considered.  How much freedom must we give up because some Special Little Snowflakes cannot control themselves, Mr Wickam? Sorry, but it is they who are just gonna have to get over it, not me.

Related: Bust Pallywood In A Fraud...And Get Sued For Defamation In France

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