Urging the government to assassinate someone vs.
urging otherstodo that
James G. Wilson
james.wilson at law.csuohio.edu
Wed Aug 24 10:49:00 PDT 2005
Reverend Robertson's vile, reckless comments are a grim reminder
that there are people in this country whose long-term geopolitical
agenda is to get the United States embroiled in a worldwide religious
war. The Muslims would be first, and then these fanatics would probably
turn their tender mercies to other apostates, agnostics, and atheists.
Although I agree that Brandenburg properly protects Robertson at this
time (in part because of some of the technical arguments made previously
on this list), I am not sure how I would decide such a case if the
religious polarization movement gains more political power and starts
engaging in frequent acts of violence (perhaps starting with the murder
of Chavez). At some point, it would be tempting to shift from the world
of Brandenburg/Scales to Brandeis' concurrence in Whitney and Dennis.
Even in the midst of writing a brilliant defense of a rich conception of
free speech, Brandeis concurred in the conviction of Ms. Whitney because
she failed to raise the "clear and present danger" issue at the trial
court level. Perhaps I am reading too much into the concurrence, but
Brandeis and Holmes come close to substituting a "bad actors" standard
for a "bad tendency" requirement. If someone becomes involved with a
group or movement that has extremely violent members and does not leave
that group, the Court becomes more deferential to lower court findings
of "conspiracy," "intent," "imminence," "incitement," and so on...
Dennis (and the Court's subsequent shift to a more protective approach
in Scales) suggests that the Court will look not just at the particular
acts. statements, and actors, but also at the extent to which they
threaten the republic. There is no doubt that 9/11 is (and should be)
part of the equation.
In other words, I wish I could always be more absolutist in my
conception of free speech and more "tolerant" of differing political
opinions, but there may well come a moment when the Court's obligations
of statesmanship legitimate a constriction of the core rights
surrounding political speech. This makes the First Amendment something
of a luxury; furthermore, some Justices may become too deferential too
soon to governmental suppression. Still, the good Reverend should watch
his mouth, because there are probably sitting Justices on the Court who
are far less committed to Brandenburg than I am.
RJLipkin at aol.com wrote:
> In a message dated 8/23/2005 11:42:51 PM Eastern Standard Time,
> 7barksda at jmls.edu writes:
> But God also gives people free will and free choice - and reason
> is one of the ways that we make those choices. But reason guided
> by the will of God. It's a partnership - a discussion between God
> and people.
> The question really is this: Does Robertson believe his
> recommendation to be either a religious call (given the context of its
> utterance) to assassinate a foreign leader or compatible with his
> religion. If yes, let's hear the religious justification. But, as
> someone who is married to a Christian, I would not think that this
> interpretation of Christianity is either kind to Christianity or
> accurate. If not, does Robertson believe that his understanding of
> Christianity permits bracketing his religious values, in matters over
> life and death, on pragmatic grounds?
> Robert Justin Lipkin
> Professor of Law
> Widener University School of Law
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