the first amendment in a time of crisis

[Marci Hamilton]

Unless this Court is in the mood to overrule Feiner (which I doubt,
especially in this age of terrorism), I can't imagine that either decision
will be reversed.  It is certainly credible to believe that such comments
would incite violence, especially given the number of people gathered.  Under
Feiner, the police get broad latitude to choose between removing the speaker
cusing the agitation (which was minor in Feiner itself--one person threatened
the speaker) or working to quiet the crowd.

Marci



In a message dated 4/2/2002 4:22:43 PM Eastern Standard Time,
kscheppe at LAW.UPENN.EDU writes:


> The Associated Press reported this past weekend that two different New York
> judges recently refused to dismiss charges against two separate defendants
> who were arrested in the aftermath of September 11 for disorderly conduct
> and inciting a riot.  The facts of the two cases were reported as follows:
>
> [quote from the article]
>
> In one case, Reggie Upshaw was charged with disorderly conduct and inciting
> a riot after allegedly praising the attacks to about 50 people near Times
> Square a few
> days after Sept. 11.
>
> Authorities quoted Upshaw as saying: "It's good that the World Trade Center
> was bombed. More cops and firemen should have died. More bombs should have
> been
> dropped and more people should have been killed." Police said the crowd
> gathered around Upshaw and made threatening remarks.
>
> In a decision released Friday, Judge William Harrington wrote that Upshaw
> said his language was "of a political nature, intended to spur debate and
> thought." But the
> judge ruled that the words "were plainly intended to incite the crowd to
> violence, and not simply to express a point of view."
>
> "The talismanic phrase 'freedom of speech' does not cloak all utterances in
> legality," the judge added.
>
>
> The decision echoed a similar recent Manhattan Criminal Court ruling
> involving a man arrested Oct. 4 near the trade center ruins. William Harvey
> allegedly said the
> attacks were revenge for American treatment of Islamic nations.
>
> Dressed in military fatigues and holding a sign with Osama bin Laden's face
> superimposed over the twin towers, Harvey attracted about 60 people, some
> of whom
> threatened to kill him, police said.
>
> Judge Neil Ross ruled that the time and place of the speech made it
> reasonable to infer that Harvey knew "that public inconvenience, annoyance
> and alarm would
> result."
>
> [end of quote]
>
>
> Comments?
>
>
> Kim Lane Scheppele
> University of Pennsylvania Law School
>
>
>

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