Apropos free speech law and suggestions of assassination

Fri Aug 26 11:10:32 PDT 2005

	I'm pleased that Bob no longer thinks that national security
would require or justify a restriction on Pat Robertson's speech.

	To the extent that the issue is relevant to the Brandenburg
analysis, though, I should mention that to the best of my knowledge a
Presidentially approved assassination of a foreign leader is not a crime
-- unless I'm mistaken, there's no statute prohibiting such
assassinations, only a Presidential Executive Order (12,333), from which
the President can of course carve out an exception.  (I would imagine
that a rogue assassination would indeed be a crime.)  Prof. Martin
argued that the assassination may violate America's treaty obligations;
I don't know the subject well enough to express an opinion, but I
suspect that it's not a crime under U.S. law for the President to order
a violation of the treaty (or for others to implement that order).

	Eugene

> -----Original Message-----
> From: Bob Sheridan [mailto:bobsheridan at earthlink.net] 
> Sent: Friday, August 26, 2005 10:57 AM
> To: Volokh, Eugene
> Cc: CONLAWPROF at lists.ucla.edu
> Subject: Re: Apropos free speech law and suggestions of assassination
> 
> 
> 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/02
> >1
> >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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