Apropos free speech law and suggestions of assassination

Bob Sheridan bobsheridan at earthlink.net
Fri Aug 26 10:56:30 PDT 2005


Let me say that I began my post calling attention to the irony of Pat 
Robertson's call for the assassination of Hugo Chavez, because he might 
allow Venezuela to be used as a launching pad for Muslim 
Fundamentalists, one of whose tenets is the elimination by assassination 
of those with whom they disagree, with the note that, "Fortunately, 
Robertson is protected by the Brandenburg decision."

I don't think Robertson can or should be restricted constitutionally 
from such blathering if he feels that's a good thing, which he 
apparently no longer does.

I see Robertson's comments as essentially unconsidered expression of 
frustration with a prominent someone holding diametrically different 
world views.  Sure, there is a question of immediacy under Brandenburg, 
such as if a listener took up the challenge and began shooting at Chavez 
right now.  But that doesn't seem to have been the situation, in 
hindsight.  Hindsight is a part of FA law that doesn't seem to get a lot 
of attention, exept in hindsight.  The focus always seems, not without 
reason, to be on "What if...?"

Eugene offered that Robertson had a right to address his government to 
urge it to assassinate.  Citizens have the right to petition, urge, 
advocate to government that it take action, even illegal action.  
Government's duty is either to reject such advice or change the law or 
otherwise act to make legal what is urged.  As I understand it, it's a 
crime for U.S. officials to do the James Bond, 007, license-to-kill 
routine on foreign heads of state.  If diplomats of hostile nations 
enjoy protection, then why not heads of state, absent a declaration of 
war? 

I hesitate to get into presidential findings of the need to 
assassinate.  I believe it to be the case that the Watergate Burglars 
and Iran-Contra officials on the NSC believed that they were justified 
in performing illegal acts on the theory that if the president wants it, 
the president gets it, and it is legal, because the president's views as 
to what protects the nation, if not above the law, are the law.

If we have the right to urge our leaders to make war, or not, then I 
don't see why we can't urge the making of war on an individual, which I 
would read as an invitation to declare war or change the law, not to 
break it.  Allowing people to vent, as Robertson was apparently doing, 
is an important value in a society that encourages people to make their 
feelings known.  It then becomes the duty of others (the marketplace) to 
come out shooting in the direction of such trial balloons.  I was 
certainly trying to do that on this forum because of the FA richness of 
the episode.  Apparently others elsewhere also figured it out 
independently and raised their voices as well.

The Robertson episode is a trove of FA concerns worth noting and I don't 
propose noting them as they've been gone over except for this.  It is so 
easy in wrestling with FA issues to fail to see the other side until it 
is put in front of you by someone who may not share your view, or who, 
even if sharing your view, has learned to regard FA values favoring free 
expression as having overriding importance.

Robertson, as a broadcaster and speaker, would, I assume, have a healthy 
respect for FA values to the extent he's thought of them.  He apparently 
missed entirely the irony that he called for the death of a person for 
promoting Muslim Fundamentalists who favor the death of persons with 
whom they disagree.  In short, he stepped into shoes of those he decried 
because he committed Sin #1 in FA understanding, that you must not do 
unto those with whom you disagree by gagging them, such as by killing them.

The fact that Robertson has put in ironic juxtaposition Christian values 
vs. Muslim Fundamentalist values and come out in agreement with the MFs 
(assassination as a gag means, a la the Rushdie fatwa) is simply icing 
on the FA cake at this banquet.

Brandenburg speaks to dangerousness of the speech in the here and now.  
I didn't see Robertson's speech as such a real danger of immediate 
action, the storming of City Hall now (in San Francisco after the Dan 
White manslaughter verdict for the murder of the mayor, George Moscone, 
and supervisor, Harvey Milk  -- White reloaded the gun -- Castro 
District residents marched on City Hall, rioted, overturned and burned a 
dozen police cars, and broke the doors to City Hall before the police 
were able to regain a semblance of order and protect the building).  
This, for me, is where the Brandenburg line is.  Speech is not protected 
when you've got the excited crowd assembled and you exhort them to burn 
City Hall, which, by the way, is, like right over there?

Eugene argues that citizens have a right to petition government, in 
essence, and while I agree, as stated, Brandenburg dangerousness is far 
more likely to exist among government agents who agree with Robertson's 
view that people who oppose U.S. interests deserve to be "taken out"  
and therefore should be.  This is  no more than the old (Southern) 
defense of "He needed killin.' ").  I guess Brandenburg didn't consider 
this, although, come to think of it the speaker was urging a march on 
Congress to protest, wasn't he.

There may have been a light note on my part in picking up Eugene's point 
that addressing government is protected speech, and noting the above, 
but it does relate to, or highlight, Brandenburg dangerousness in its 
own peculiar way: i.e, Suppose that the danger comes not from a mob of 
private citizens but from gov't officials who may take heart from a 
leader of Robertson's somewhat national stature, considering his 
national forum, his history as a national political candidate, and the 
relatively common knowledge that he and the people he speaks for are 
strong supporters of the present administration politically.  Government 
officials are at least as likely to take heart from a man they may view 
as a moral leader as private citizens; hence the Robertson speech was 
arguably (with tongue firmly in cheek) more dangerous than speech to a mob.

I can't remember where the principle may be manifested, but isn't there 
U.S. law which prohibits citizens from interfering in the nation's 
foreign affairs in various ways?

rs

Volokh, Eugene wrote:

>	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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