Apropos free speech law and suggestions of assassination

[Sanford Levinson]

Though surely it's worth noting that Stephanopoulos, even though on the outs with Clinton at that point, could reasonbly be seen as a reasonbly major political figure who might well have been floating a trial balloon, and in that sense he was even less a "puny anonymity" than Robertson.  Although no one would suggest punishing S., it certainly would have been reasonable to have demanded that he be fired had he still been part of the Clinton Administration, in the same way that it was appropriate to demand Trent Lott's scalp after his woeful comment about Strom Thurmond.  "First Amendment protection," classically, refers to the ability to stay out of jail for one's speech; it surely doesn't mean that ill consequences can't follow indefensible (or simply politically volatile) remarks.  There's much to be said for assassinating Saddam Hussein, but, of course, it is illegal (unless one views that as yet one more indefensible limit on the President's prerogative) and also politically dubious.  Surely one of the things we are learning now is the mistake of overreliance on an "awful man" (the converse of the "great man") theory of history, by which we assign all blame for Iraq's condition on the tyrant Saddam.  I will not rehearse the prior posting regarding Tom Friedman's musings about whether Iraq requires a "strong man" (and in this instance it would be almost silly to use a gender-neutral noun, even though Indira Ghandi and Banazir Bhutto have demonstrated that one can indeed be a "strong woman") even if not, one hopes, an egregious tyrant.
 
sandy

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Thu 8/25/2005 10:38 PM
To: VOLOKH at law.ucla.edu; conlawprof at lists.ucla.edu
Subject: Re: Apropos free speech law and suggestions of assassination


In a message dated 8/25/2005 6:54:52 PM Eastern Standard Time, VOLOKH at law.ucla.edu writes:

	Glenn Reynolds points out that George Stephanopoulos wrote a
	Newsweek article on Dec. 1, 1997 urging that Saddam Hussein be
	assassinated.  Again, my view is that such speech -- urging the
	government to take a particular action, whether or not we approve of it
	-- is core protected speech, which deserves the fullest of First
	Amendment protection.  Do those who were hesitant about protection for
	Robertson's speech disagree?  Or is there some distinction that they'd
	offer?
	

        I reviewed several posts in this thread and did not find anyone who categorically denied that Robertson speech was protected or even any one of whom it would be fair to say was truly "hesitant about protect[ing] Robertson's speech." Of course, I might have overlooked the relevant posts because that, for me, was not the interesting aspect of the discussion.  I didn't consult the archives nor am I sure I read every post, but it would be helpful if Eugene were to identify (if not the members) the language that clearly shows a reluctance to consider Robertson's remarks to be protected speech.  Illumination here would be appreciated.
 
        Both Stephanopoulos and Robertson's speech, in my view, are and should be protected.  That was never the issue, at least for me.  The difference between the two is that Stephanopoulos is a politician and Robertson is primarily a religious leader. The issue, for me at least, was always whether or not we treat the two the same.  Or put differently, whether permitting religious leaders to bracket their religious faith and make political statements, arguably inconsistent with that faith, has implications for issues of religion in the public square.  If it's perfectly all right for Robertson to bracket his religious faith when it comes to assassination, why shouldn't democratic citizens have a persuasive argument that religious citizens bracket their religious beliefs regarding prayer in the school or displays of creches or the Ten Commandments.
 
        I would be interested to be alerted to those posts that clearly state that Robertson's speech should not be protected, and would be grateful to Eugene for pointing out these posts or the arguments made in them.  I can't imagine the arguments being very strong or persuasive.  Thanks.
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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