Apropos free speech law and suggestions of assassination

Volokh, Eugene VOLOKH at law.ucla.edu
Fri Aug 26 09:23:51 PDT 2005


	Bob Sheridan, as I understood his post, suggested that
Robertson's speech might be constitutionally restrictable.  See
http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/2005-August/021
564.html ("don't you think that national security requires such a
restriction?")  Sandy asked whether "if we support citizen speech but
not resident alien speech, is that because we give some special
'credit,' as it were, to the speech of our fellow citizens, or simply
out of a positivist belief that we're 'stuck' with the First Amendment
and have to tolerate certain kinds of egregious speech, but the FA, at
the end of the day, protects only citizens?"   I took this as a
suggestion (one that Sandy might ultimately not endorse, but that he
thinks is important to air) that we should be hesitant or regretful
about the protection of Robertson's speech.

	I agree entirely that Robertson's and Stephanopoulos's speech
should be protected, and my view that it should be entirely equally
protected -- the religiosity of one's views neither strengthens nor
weakens one's rights to express those views.

	Eugene
 
-----Original Message-----
From: RJLipkin at aol.com [mailto:RJLipkin at aol.com] 
Sent: Thursday, August 25, 2005 8:39 PM
To: Volokh, Eugene; 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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