The high cost of free speech
by Kelvin Wade
In a 2-1 decision, the 9th Circuit Court of Appeals has ruled that encouraging the assassination of a presidential candidate is protected speech.
In October 2008, Southern California resident Walter Bagdasarian posted “Re: Obama fk the niggar, he will have a 50 cal in the head soon” on an online forum. Twenty minutes after the first post, Bagdasarian posted “shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos.” He went on to write that he was drunk (which seems obvious).
Another person online reported the comments to law enforcement who contacted the Secret Service. Bagdasarian was arrested, charged and found guilty of threatening a presidential candidate.
That conviction was overturned by the 9th Circuit court. The court ruled that the comments were not a threat because a reasonable person wouldn’t have taken them seriously. They say that even though Bagdasarian owned .50 caliber weapons and ammunition, no one reading the forum would’ve known that and thus wouldn’t have taken him seriously. Meeting the “reasonable person” standard is one of the thresholds for committing the crime.
The court also ruled that Bagdasarian’s invitation to “shoot the nig” was not a personal threat. It merely exhorted someone to shoot Obama at some unspecified time. Exhortations for someone else to shoot a candidate on a public forum is protected speech because it lacks imminence.
It seems crazy on the surface. After all, one can’t mention a ‘bomb’ in any context in an airport within earshot of TSA but encouraging someone to shoot a presidential candidate online is protected.
But when it comes to First Amendment cases, the courts usually err on the side of speech. In 1988, when the Rev. Jerry Falwell took pornographer Larry Flynt to court after Flynt’s Hustler magazine ran an ad parody implying Falwell had lost his virginity to his own mother, the court ruled 9-0 for Flynt. It was a landmark case that extended protections to parodies and expanded what could be said about public figures.
In an interview in 2007, Flynt said “…If the First Amendment gives us any right at all, it gives us the right to be offensive.”
In March of this year, the Supreme Court ruled 8-1 in favor of the outrageously offensive Westboro Baptist Church that pickets funerals of dead soldiers. Free speech trumps offensiveness.
And the U.S. Supreme Court recently ruled that the government couldn’t prevent children from purchasing violent video games arguing there is no long-standing tradition of shielding children from depictions of violence. Thus, it is constitutionally protected speech.
There’s no doubting that Bagdasarian’s remarks are hateful and offensive. But in looking at the text of the law he was alleged to have violated, it was the right decision.
The bad part is that this decision could have the affect of opening the floodgates to a lot of dangerous speech. Haters will use the case as a roadmap to what they can get away with. How long will it be before there’s a www.killthenig.com? In a climate of heated rhetoric, the ruling could have the effect of spraying an accelerant on open flame.
We don’t have to like it. It sets the stage for an ever-escalating war of rhetoric. Liberal bloggers will try to think of the most creative way of talking about Michele Bachmann being killed. And while the tit for tat might make for some macabre musings, is it really where we want political rhetoric to go? Just when we thought discourse could be taken no lower, will we be in a battle of death wishes and predictions of death for our political enemies?
But, hateful rhetoric can be fought. People often misunderstand the First Amendment. It refers to the government limiting speech. The private sector limits speech all the time. Advertisers for Glenn Beck’s Fox TV show were successfully boycotted helping lead to the cancellation of the show.
And there’s no free speech on my Facebook page. If I don’t like your comment, I can delete it. And Facebook creator Mark Zuckerberg is free to define and enforce what speech he allows on his site. Yahoo can decide to ban people who use hate-filled rhetoric like Mr. Bagdasarian did. And different websites have different terms of service that hateful speech can be reported to. Private enterprise doesn’t have to stand for offensive speech.
We should always remember that the best corrective to offensive and hateful speech is more speech. The one thing worse than people saying terribly offensive things is the government deciding what we can say and who can say it.
The price for free speech is tolerance.