Free Speech Under Attack

The woman in the video below was convicted of using a racial slur. This article is not trying to justify what the woman said.  It is defending her right to say it. The U.S. Constitution (and indeed all state constitutions) protects unpopular and even offensive speech. Indeed, popular speech needs no protection. Restrictions on speech begin with an attack on the vulgar, the profane, and then segue into restrictions on the holy and pure. First, they restrict the unpopular slur; they build on that president to place restrictions on the gospel.  Indeed, we see that very thing happening with the proposed Antisemitism Awareness Act. U.S. Congressman Matt Gaetz opined that “[t]he Gospel itself would meet the definition of antisemitism under the terms of this bill!”

Notably, Matt Gaetz was forced to withdraw his name for consideration as U.S. Attorney General based on false allegations of sexual impropriety that were drummed up by Zionists who feared his objective view of Israel and isolationist foreign policy. If you are not completely on board with Israel, you are considered an antisemite, and they will come after you. That is what happened to Matt Gaetz. USA Today reported that “[t]he American Jewish Committee also urged Trump to ‘reconsider this nomination’ and said that the Senate has a ‘responsibility to reject it.'” They then fanned the flames with allegations of antisemitism. Jonathan Greenblatt, the CEO of the Anti-Defamation League, falsely alleged: “Rep. Matt Gaetz has a long history of trafficking in antisemitism.” The Zionist Jews, through their sculduggery, were ultimately successful in keeping Gaetz from becoming the U.S. Attorney General. 

Vulgar Speech vs. Obscene Speech

The law as applied in the case against the woman in the video below is unconstitutional. The statute uses the word obscene, but the woman was not prosecuted for using obscene language. She was prosecuted for using vulgar language. Vulgarity is not the same as obscenity. Profanity and vulgarity are protected by the First Amendment. For example, wearing a jacket with the words “F*ck the Draft” embossed on it is not obscene; it is protected vulgar speech. Cohen v. California, 403 U.S. 15 (1971). The U.S. Supreme Court explained that “while the particular four-letter word [f*ck] being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Id. at 25. Obscene language, on the other hand, is not protected by the First Amendment. Obscenity means a display or expression that is, in some significant way, erotic, appealing to prurient interest in sex. Roth v. United States, 354 U.S. 476 (1957). For example, graphic depictions of sexual acts that lack serious literary, artistic, political, or scientific value would constitute obscenity. The judge should have dismissed this case. The court, it seems, simply did not understand the difference between protected vulgarity and unprotected obscenity.

Fighting Words

One might argue that the racial slur constituted fighting words. But a racial slur or abusive language that offends another person will never be enough to constitute fighting words. The Government may only criminally prosecute as ‘fighting words’ speech when there is a likelihood that the speech will produce a clear and present danger of violence. It is not enough to constitute fighting words if the speaker condemns the conduct of a protesting crowd or criticizes various political or racial groups. Terminiello v. City of Chicago, 337 U.S. 1, 3 (1949). Speech that stirs people to anger, invites public dispute, or brings about a condition of unrest is protected by the First Amendment. Id. at 5. Opprobrious and abusive language, even if it provokes a breach of the peace and violent resentment in the listener, does not come within the “fighting words” exception to First Amendment protection. United States v. Bartow, 997 F.3d 203, 207 (4th Cir. 2021). “Fighting words means words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Gooding v. Wilson, 405 U.S. 518, 524 (1972. To constitute fighting words, the speaker must address a specific person, and the words used must create the likelihood that the person addressed would make an immediate violent response. See Gooding, 405 U.S. at 528. “[T]he Government must identify to whom the defendant ‘individually addressed’ the challenged language and prove that the language was likely to provoke an immediate violent reaction by that person or a reasonable person in that individual’s position.” 997 F.3d at 209. “Fighting words means words that have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” 405 U.S. at 524. “The Supreme Court has clarified that even a ban on ‘opprobrious’ and ‘abusive language’ that provokes a breach of the peace and violent resentment in another person does not come within the fighting words exception to First Amendment protection.” United States v. Bartow, 997 F.3d 203, 207–08 (4th Cir. 2021), citing Gooding, 405 U.S. at 524.

Incitement to Riot

One could argue that her speech constituted incitement. Speech that constitutes an incitement to riot is not protected by the First Amendment. In order for such speech to constitute unprotected incitement to riot, the incitement must come from the speaker. Fiener v. New York, 340 U.S. 315 (1951). His words must be likely to produce a clear and present danger of riot, disorder, or interference with traffic on the public streets. His speech must advocate riot and violence. If he refuses to cease his advocacy of violence, the speaker can be arrested. Id. at 318-19. Speech constitutes incitement to riot if “(1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.” Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 246 (6th Cir. 2015) (en banc). That did not happen here.

Heckler’s Veto

If the speech is simply distasteful, loathsome, or unpopular, it does not become incitement simply because a person (or even a crowd) reacts violently to the speech. “The hostile reaction of a crowd does not transform protected speech into incitement.” Bible Believers v. Wayne Cnty., Mich., 805 F.3d 228, 246 (6th Cir. 2015) (en banc). The First Amendment does not allow a heckler to veto the free speech of another, no matter how loathsome and unpopular the speech or how offended the heckler may be. Indeed, it is distasteful and offensive speech that needs protection; popular and widely celebrated speech needs no protection. The speaker loses his constitutional protections only when he crosses the line from contentiousness into inciting lawlessness. Otherwise, his speech is protected. Any regulation that affects speech must be content-neutral as a necessary (but not alone sufficient) basis. “Listeners’ reaction to speech is not a content-neutral basis for regulation.” Id. at 247, quoting Forsyth v. Nationalist Movement, 505 U.S. 123, 134 (1992). A heckler’s veto is odious viewpoint discrimination that violates the First Amendment. See Bible Believers, 805 F.3d at 248. No such restriction on speech can survive unless it is narrowly tailored to be the least restrictive means to serve a compelling government interest. That strict scrutiny test was put in place by the Supreme Court as a bulwark against government regulation of speech. It was put in place to avoid an absolute prohibition on government restrictions, but to allow them only in the rarest of circumstances. A restriction on speech premised on a heckler’s veto will seldom, if ever, be able to pass that strict scrutiny test. Id. at 248, citing Cantwell v. Connecticut, 310 U.S. 296 (1940). “Supreme Court precedent firmly establishes that the First Amendment does not countenance a heckler’s veto.” Bible Believers, 805 F.3d at 248.

Breach of the Peace

Police can prevent a breach of the peace. A breach of the peace is a substantial risk of violence or interfering with traffic or blocking clear passage of the public. See Washington v. Cullinane, 566 F.2d 107, 116 (D.C. Cir. Ct. 1977). “The police have a duty to keep streets and sidewalks open for the movement of traffic.” Id. at 116 citing Schnieider v. State, 308 U.S. 147 (1939). But it is not enough that the words of the speaker upset the hearers and cause murmurings, discontent, or disturb the public peace. The First Amendment protects unpopular, controversial, and upsetting speech. Indeed, popularly accepted ideas need no protection as they would not give rise to an objection. Even highly offensive religious rhetoric that criticizes the religious beliefs of others cannot constitute a breach of the peace, even if it causes a person to want to hit the speaker. Cantwell v. State of Connecticut, 310 U.S. 296 (1940). The Constitution does not allow a heckler’s veto, where the restriction of speech is based solely on the perceived discomfort of listeners.