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Free Speech In America

What are the 5 types of speech that are NOT protected by the law? Examine two free speech cases.

By Fearless WarriorPublished 3 years ago 18 min read
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Introduction

The first Amendment of the United States Constitution asserts that we have civil liberties which includes free speech and free press. Free speech is defined not only as the spoken word, but also includes books, articles, plays, films, expressive conduct, and the court says there is an implied freedom of association and privacy of our political association/s. There are five types of speech that have been specifically banned by the Supreme Court; obscenity, libel/defamation, advocacy of imminent illegal action, fighting words, and fraud/misrepresentation. When examining the City of Rushmore ordinance regarding free speech and the charges being brought upon Mr. Kandinsky and Mr. Magritte, it is important to use the balancing approach in which the Supreme Court must compare the right of the government to protect and govern us, and consider the importance of the individual rights and liberties of the citizens. By examining each case and realizing which standard of review is appropriate, the Court can determine who has the greater burden of persuasion and consider that their ‘weight on the balance’ must be more substantial to justify ruling in their favor. . The Court has heard thousands of cases over the course of history and recently given higher priority to the rights of individual citizens, especially when it comes to free speech.

Constitutionality of the Rushmore Ordinance

The city of Rushmore ordinance states, “In demonstrations consisting of 100 or more persons, it is prohibited for an individual to articulate vitriolic or vituperative speech towards law enforcement personnel which invites or encourages physical assault upon such officers.” The city ordinance does not merely regulate the time, place, and manner of speech, this ordinance clearly regulates the content of speech. Individuals being able to express vitriolic or vituperative speech is important for any functioning, healthy democratic society. People must be able to express dissenting views, and have the right to express them even if their bitter tone or choice of words offends others, including police officers. The ordinance also specifically says this type of speech is only prohibited when directed towards law enforcement, and when it ‘invites or encourages’ physical assault upon such officers. Sometimes however, one may use hyperbole when speech giving for a more dramatic effect and have no intentions of actually carrying out any violent acts. This law is vague as to what specific words or actions would be interpreted as ‘inviting or encouraging’ physical assault, it does not protect those who use hyperbole in their speech. What is specifically considered ‘vitriolic or vituperative’ enough to be arrested? Is criticizing the police the same as advocacy of imminent illegal action and fighting words, which are categories of speech that are unprotected by the first amendment? If someone directly threatens a specific police officer with violence, such as a death threat, or by aiming a weapon at an officer, that is clearly someone the government has a right to arrest, however, this law has the issue of overbreadth in that in addition to banning fighting words and advocacy for imminent illegal action, it also seems to imply that the city also bans some protected speech as well. Criticism of the local police should be protected speech, because citizens have a Constitutional right to speak their minds. This city law creates a chilling effect on speech. Because the law is vague, many people will be unable to understand what speech is allowed and which speech is banned, so citizens of the city will become fearful of saying anything negative against the local law enforcement, because they could get arrested. Also, there could be an issue of selective enforcement by the police if the police officers themselves are unable to understand what the law means or when they are supposed to enforce it. There is unfair due process when someone is arrested, but they didn’t completely understand the law in the first place. Specifically the 5th and 14th amendments protect one’s right to fair notice what behavior is specifically prohibited to them.

In the case Yates v. US 1957, Yates and 13 others had been convicted for being a part of a group that is known to advocate violence and overthrow of the government, but the majority opinion of the Supreme Court asserted that you cannot convict someone on the mere advocacy of ideas when no actions were taken; that is unconstitutional. This ordinance is prohibiting dissent against the police, and whether someone is using hyperbole or hate speech towards the police, that should not be legal in of itself. In order to punish speech the government prosecutors must be able to show actions that the citizens committed. In the case of Brandenburg v. Ohio 1969, the Preferred Freedom Doctrine was born. Brandenburg was the leader of the KKK and declared at a meet that revenge may have to be taken on the government if they kept repressing the white race, the way they had been. If someone had made this statement about the city of Rushmore police, wouldn’t this be in violation of their city ordinance? It appears to be vitriolic speech towards government, including law enforcement, which could be interpreted as encouraging violence or attacks on police. The Supreme Court overruled Brandenburg’s conviction and emphasized that the intention of the speech giver was important, as well as if those ‘violent acts’ the speech giver may seem to be encouraging, will actually happen imminently. The first amendment does not specifically mention freedom of association, but it is implied and derived from our explicit right to free speech, press, freedom to peacefully assemble and petition the government for a redress of grievances, so there is an implied freedom of political association. If there were such a group hypothetically that advocated ‘policing the police’ who decided to have demonstrations in this city to protest against police violence and corruption, or even if they simply just did not like police and felt they were doing more harm than good for society, wouldn’t it still be protected by the first amendment for such groups to exist? Under Rushmore’s ordinance, people of such groups who speak in that manner towards police would be most likely to be forced into silence and arrested. If someone is making a political statement and wishes to speak up against law enforcement in regards to their grievances, that would be protected speech. Pure speech, which is the communication of ideas in the purest form, absent of any conduct, have the greatest amount of protection from the Supreme Court. One of the most important cases relevant to the Rushmore ordinance is the Terminello v. Chicago case of 1949. Terminiello gave a speech where he made attacks on various political and racial groups. He referred to crowds of protestors as slimy scum and snakes. The police couldn’t handle the chaos that followed so he was arrested for inciting a riot. The ordinance in Chicago stated speech that ‘stirs people to anger or invites dispute’ was banned and the Supreme Court found this law to be unconstitutional. The Rushmore ordinance is similar in that it also bans speech that invites or encourages violence (toward police); a speech that appears to cause chaos or riot could be interpreted as ‘encouraging violence,’ in the Terminiello case the law was unconstitutional due to overbreadth. In Watts v. US 1969, Mr. Watts stated at a political gathering, in a public forum, that if he was ever inducted into the army, ‘which ain’t ever gonna happen,’ and made to carry a rifle, that the first person he would get in his sights would be the president. Isn’t making a threat to the President of the United States equal to, if not worse than, a threat made to a police officer? However, Watts stated that he was simply making political hyperbole, and there was no evidence that he would actually go and kill the President of the United States. The Supreme Court agreed that it was not a true threat and ruled in his favor. When enforcing the Rushmore ordinance, how do we know police are able to determine what is a true threat that will imminently incite violence against police, or whether someone may just be speaking dramatically with no intentions of actually harming the police nor to cause others to attack law enforcement?

In Cohen v. California 1971, Cohen wore a jacket that said, ‘Fuck the draft.’ It was a political statement, and determined to be protected free speech by the Supreme Court. Despite the ‘bad language’ the message was clearly a political one, and that was the reasoning behind the Supreme Court decision. If someone wore a jacket that said, ‘Fuck the police’ would that be considered language that ‘invites’ physical assaults on law enforcement? Sometimes the meaning of messages can be open to interpretation, but we cannot assume what someone says is a threat unless there is sufficient evidence to support that they are intending to commit a real attack or purposely attempting to incite violence with someone. If someone is being convicted, it better be a clear and obvious threat being made. Even hate speech which is devoid of traditional commentary on political issues or need for change on public policy, while demeaning and hurtful, is still protected speech and police cannot stop them from expressing such views of being anti-police. The burden of proof falls upon the government in cases of regulating the content of free speech. In the case of Colin v. Smith 1978, or as it was famously known: the Nazis v. Skokie case, the American Nazi Party wanted to have a big demonstration that included hateful speech and conduct in a town that was full of many Jewish Holocaust survivors. The city prohibited any materials that incited or promoted racial or religious hated. Skokie residents said the Nazis words are classified as ‘fighting words’ and therefore should not get first Amendment protection, however the 7th Circuit Court ruled in favor of the Nazis and stressed that just because a message can cause physical pain, does not give the government the right to regulate or punish speech. Residents are not a captive audience, they could avoid that part of town where the demonstration is taking place. In the case of Texas v. Johnson 1989, Johnson was not a fan of President Ronald Regan so when republicans held a national convention in Dallas he decided to go down to Dallas city hall and burns an American flag. Many Americans view the burning of the American flag to be not only disrespectful, but sometimes it can be interpreted as a threat or act of terrorism against the US. The Supreme Court in this case ruled that flag burning is expressive conduct and protected by free speech, because Johnson was distinctly doing so for political reasons, being offensive is not grounds to prohibit it. If someone decided to burn large police dolls, would could be interpreted as a threat or inciting violence to the police officers of Rushmore? It should still be protected speech and expression, especially if there is a specific political message behind these actions. We also can see in the case RAV v. City of Saint Paul 1992 that burning a cross in order to express a ‘hateful’ message is still protected speech and conduct. We cannot make laws that only protect certain targeted groups, such as only police officers, from hateful speech or conduct that may be upsetting, while at the same time not protecting other groups of people from the same type of hateful and upsetting speech directed towards them. Also we need to consider this new movement of ‘blue lives matter’ that has been going on in the US in response to the ‘black lives matter’ movement. Police officers are not actually ‘blue lives,’ they were not born police officers, they chose to go into the law enforcement profession, it is not an innate characteristic they were born with. A black person cannot change their race and skin tone, but a police officer can decide to quit his job if he cannot handle the high pressures that come with the job. A police officer who is easily offended and scared by intense situations, probably shouldn’t be in law enforcement. It is a demanding job, and not everyone can do it. This law could so easily allow police officers to abuse their position of power with selective enforcement, and chilling of citizens, it is unacceptable to allow officers to have this much power to violate the Constitutional free speech rights of citizens who do not truly intend to commit illegal actions or violence.

Rufus Kandinsky:

Rufus Kandinsky was an attendee at a massive protest in the city streets of downtown Rushmore. City streets are public forums with the greatest free speech protection. Kandinsky shouted, “The police are god-damned Nazi Gestapo and are little more than goose-stepping storm-troopers, doing the bidding of their corporate overlords, keeping the hard-working lower classes down by beating them and killing them. We’ve got to do something to stop this flippin’ oppression!” Kandinsky used pure speech while at the protest that was absent of any type of expressive conduct that may be misinterpreted by police as violence or attempted violent attacks towards them.

Kandinsky did not make any specific direct threats to the police officers who were at the protest and he was not ‘in their faces,’ he was 20 feet away from where the officers were standing. In the case of Chaplinsky v. New Hampshire 1942, a Jehovah’s Witness (Chaplinsky) had irritated a police officer by calling him a ‘god-damned racketeer and a damned fascist.’ Chaplinsky used the same style of language as Kandinsky and The Supreme Court ruled against Chaplinsky in that he had violated the state peace statute. The reasoning of the Court have to uphold Chaplinsky’s conviction was that some forms of expression do not convey ideas and therefore should not receive any first amendment protection. Chaplinsky’s words were considered fighting-words, which the Court defines as words that inflict injury or tend to incite immediate breach of the peace, and are intended to do so. The Supreme Court believed that Chaplinsky was in the police officer’s face yelling these words, because he intended to provoke a fight with the officer. Kandinsky however, was a full 20 feet away from the police officers at the Rushmore protest and he did not target his criticizing speech towards any specific police officer. The fact that this was an actual political protest where the entire purpose of those attending was to express dissent, outcry against current political policy and declare grievances, it should have been expected that Kandinsky did not come there only to say polite, kind things about the government when his clear intent was to demand changes in legislature through the demonstration. Kandinsky did not meet the police officers by a random chance encounter the way Chaplinsky did, and any reasonable person would not assume that the speech he gave was meant as a threat of violence against the police. Kandinsky was just speaking his mind in hopes of being heard so that real changes may happen within the US laws. Police officers are supposed to be trained to stay professional and not get upset when people are ‘mouthing off,’ which is especially prevalent behavior for a street protest. The entire purpose of having a free speech guarantee in the first Amendment is so that people can dissent against the government. Assuming that the Rushmore ordinance is constitutional, Kandinsky did not violate this law. He simply exercised his free speech rights to dissent and any vitriolic or vituperative speech aimed towards law enforcement personnel did invite or intent to encourage any physical assault upon officers. The prosecutor in this case may stress the fact that Kandinsky said police are killing and beating the lower class and how Kandinsky stated we need to stop this oppression. These statements could be interpreted as inciting violence on the police, and that the police are an enemy that has been killing and beating people, so people should be willing to fight back. The interpretation of the context of Kandinsky’s speech will affect the outcome of his appeal. If the court views his words as a true threat and encouragement revenge by violence against the police, then Kandinsky could be convicted. There has been a history of speeches similar, if not more aggressive and insinuating of violence than Kandinsky’s however, and the majority of which cases have had overturned convictions by the US Supreme Court.

Oliver Magritte:

Oliver Magritte had been at the Rushmore protest, when he came within 15 feet of the line of police officers and began shouting: “There’s that friggin’ obese pig Officer Blutarski—see him?...he’s the one directly to the left of the lamppost with the big handle-bar mustache….he’s one big fat porker, let’s go cut him up and see how much bacon we can fry up and squeeze out of the son of a bitch!” Attached to and hanging from Magritte’s pants belt in plain sight was a 6 inch knife that was sitting in a knife sheath. Magritte was arrested, prosecuted and convicted for violating the same Rushmore ordinance as Kandinsky was. Magritte had been in trouble with the law before with this specific officer, and since this was a more specified verbal attack on a singled out police officer, and because Magritte specifically said ‘let’s go cut him up’ this could be interpreted as a specific direct threat to harm a police officer and encouragement of others to participate. Magritte’s previous criminal record should be irrelevant, as these are new charges being brought against him and we cannot judge someone more harshly based upon their past; that would be discriminatory. However, it is clear that Magritte was personalizing and being very specific in his statements towards the police officer. Just like in the case of Watts, it could be argued that Magritte was only making that type of speech in order to provoke a fight with the targeted officer, Officer Blutarski. Fighting words are not protected by the first Amendment, nor by this Rushmore ordinance if we assume it is a constitutional law. Is there a Rushmore ordinance that bans citizens from carrying knives at protests in public forums? If there is no specific ban on knives, it is irrelevant that Magritte happened to have a knife when he was making his speech. Magritte did not reach for the knife nor try to use it on anyone, in fact he was safely wearing it within a knife sheath the entire time he was at the protest. Magritte would argue that he was merely using political hyperbole; he was exaggerating when he stated those comments about cutting the officer up and turning him into bacon. Police officers have often been referred to as pigs by unhappy citizens. Someone making pig and bacon references likely does not actually believe that the officers are literally pigs who can be cut up and turned into real bacon. It is evident this type of slang is in many cases considered hyperbole and not a true threat. The prosecutors in this case would argue that even if Magritte clearly did not believe the officer would ‘become bacon’ his intention when saying this type of speech was clearly to encourage the crowd to help him cut Officer Blutarski. Since there is an established bad relationship the two have had in the past with one another, and because Magritte was specifically calling out this officer, it was evident he was trying to start a fight and perhaps was intending to cut him as he had brought a knife to the protest. Magritte also did not say anything political in his speech; he only criticized and encouraged violence against this one targeted police officer whom he shared a history with. Whether the threats were real or just hyperbole is up to a judge to decide. If Magritte had made other statements that were political in nature and not just negative comments about the one police officer in the crowd, he would have more grounds for arguing free speech protections. The Supreme Court asserts some forms of expression do not convey ideas and therefore should not receive any first amendment protection. What were the ideas behind Magritte’s speech? Merely to express dislike for this one particular police officer? Was there a deeper message? Magritte would have a difficult time defending that there was a deeper, political message to his speech, other than the intent to harass and try to humiliate Officer Blutarski, and perhaps even the intent to threaten or scare the officer. Magritte could cite the Watts case in which the President was ‘threatened’ in hypothetical terms by a speech giver, and that speech was determined to be protected speech. Perhaps Magritte could also cite Brandenburg v. Ohio, where the KKK leader stated ‘revenge must be taken,’ however in this case he did not specifically call for violence such as cutting someone up and frying them, and he did not target just one specific person in government, so it would be a far reach to use the Brandenburg case to argue his appeal. The Watts case, while he was specific about the hypothetical target (the President of the United States), and that he would kill him by shooting him, he was still very clear that he did not expect that event to actually happen. He was clear he never thought he would be drafted in the military nor ever be in a position where he would feel compelled to actually kill the President.

It will be more challenging to overturn Magritte’s conviction than it will be to aid Kandinsky in his appeal. Whether the judges in Magritte’s appeal case are more liberal or conservative, and whether we are in a current time of war, may strongly impact the outcome of the ruling. Kandinsky is the textbook example of what protected political speech is all about. The entire purpose for the first Amendment is to be able to speak out against our government in public forums and be heard so that progress can be made in this country and law improves to better serve the citizens.

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