Apropos free speech law and suggestions of assassination

[Francisco Martin]

18 U.S.C. sec. 1116 criminalizes extraterritorial murder of heads of state
by U.S. nationals.  Section 960 explicitly criminalizes military
expeditions against countries with which the U.S. is at peace.

Francisco Forrest Martin
President
Rights International, The Center for International Human Rights Law, Inc.


> [Original Message]
> From: Volokh, Eugene <VOLOKH at law.ucla.edu>
> To: <CONLAWPROF at lists.ucla.edu>
> Date: 8/26/2005 2:12:10 PM
> Subject: RE: Apropos free speech law and suggestions of assassination
>
> 	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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> > >
> > 
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