SUICIDE BY SPEECH?

"Congress shall make no law… abridging the freedom of speech … ." 

What does that really mean? It certainly does not mean what it says. Congress makes many laws abridging the freedom of speech. Examples include pornography, incitement, true threats, espionage, libel, and many more.

Unsurprisingly, there's lots of "give" in deciding which speech is protected by the First Amendment’s "abridgment" clause, and which is not. The difference can often be a matter of life or death to 

A. Individuals, or even 

B. Our Constitutional democracy.

                                           A. 

I offer up an example of the former, to which I have earlier referred:

In the early 1990s, a group of antiabortion extremists came upon a distressingly effective means of reducing the number of abortions by reducing the number of doctors who perform them. The process was simple enough. It didn't take mob violence. All it took was an Old-West style “WANTED” poster with a photograph and geographic details of the offending physician, and a pattern soon spread across the land: a physician who was “postered” was then killed by an inspired-but-heretofore-unaffiliated person. 

Once it became known in the medical community that being postered was a sentence of death, not only postered physicians quit performing abortions, but others, fearing they were “next," did so as well. When an extreme antiabortion group in Oregon saw the success of the poster process, they decided that killing one physician at a time was not good enough and they issued a “Deadly Dozen” poster. At the top of the poster in bold 6-inch letters was the word "GUILTY." In the center was the name, photo, and home addresse of 13 abortion providers, It didn’t say “DEAD OR ALIVE” after the word “WANTED”. It didn’t have to. At the bottom of the poster was the promise, “REWARD.”

Did the deadly dozen list instill fear in the minds of doctors and nurses and other clinicians? You betcha!  Indeed the sponsors of the list admitted as much and were proud of their accomplishment.

My law firm sued the antiabortion group to stop the threats. The defense? The First Amendment! They argued the Constitution gave them the right to encourage other people to murder physicians.

The case went to trial and the jury was charged with the determination of whether the “postering" of these physicians was a “true threat" and therefore beyond First Amendment protection.

The jury said “yes,” the trial judge agreed, but a three-judge Circuit Court said otherwise in an opinion written by the soon-to-be-disgraced Alex Kosinski.  He wrote “Merely encouraging or making it more likely that others would carry out… the gruesome mission was constitutionally protected speech!” (Kosinski was later driven from the bench when it became known he was showing pornographic films to his young female clerks. The disgraced former judge is now counsel to former president Donald Trump.) (Oh yeah, an en banc court reinstated the trial verdict.(

                                             B,

The Trump era has upped the stakes. Now the question is beyond whether speech will result in the killing of a particular craft of men and women. At risk is the Constitution itself.

There is now abroad the land a group of men who call themselves Christian Nationalists, or words to that effect  They include the Proud Boys, the Oath Keepers, and scores of militias across the land. They are armed and they communicate freely (and often illegally) on social media channels. When established channels forbid their hateful and often violent rhetoric, they form new channels that effectively encourage hate speech. They used those channels to organize the "Unite the Right" march on Charlottesville, and the January 6  insurrection attack on the Capitol and they communicate messages that are encouraged, if not sponsored by Donald Trump. His open and notorious approval is manifest. Indeed, it has been raised as a defense in trials of the rioters!

The calculated nature of Trump’s approval of hate speech was established earlier this week when he publicly dined at Mar-a-Largo with Kanye West and Nicholas Fuentes. 

West has become, of late, a rabid anti-Semite who, he said, is now ready to “go to death con three with the Jewish people."  Fuentes, on the other hand, is an older hand at this. He has been blocked by numerous media for his hate speech. He is a hard-core White Christian Nationalist who has denied the Holocaust, criticized Trump for saying bad things about white supremacy, and has questioned whether Hilter's conduct toward the Jews "was a bad thing." He has basically threatened Jewish annihilation with his statement:  

"The Jews had better start being nice to people like us, because what comes of of this is going to be a lot uglier and a lot worse for them than anything that has been said on this show." 

These are the former president’s luncheon guests. In public yet. You can't make this stuff up.

Can there be any doubt that this public approval of anti-Semitic behavior encourages the spread of anti-Semitism?  Are these threats to annihilate Jews, and this talk of “death con three for Jews,”  to use the words of  Trump’s of new lawyer, “merely encouraging or making it more likely that others would carry out the gruesome mission and therefore constitutionally protected speech?”

Or was Justice Robert Jackson correct when he wrote a half-century ago:

"No serious outbreak of mob violence, race rioting, lynching, or public disorder is likely to get going without the help of some speechmaking.”

It was Jackson, in the Terminiello case who nailed it: 

“In the long run, maintenance of free speech will be more endangered if the population can have no protection from the abuses which lead to violence.”

 Jackson, a former Nuremberg prosecutor, made his fears clear:

 "There are many appeals these days to liberty, often by those who are working for an opportunity to taunt democracy with its stupidity in furnishing them the weapons to destroy it,  as did Goebbels when he said 'When democracy granted Democratic methods for us, [Nazi seizure of power] was bound to happen in a democratic system. However, we national socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in times of our opposition.'”

Translation: Trump, the Oath Keepers, the Proud Boys, West, Fuentas, and other would-be authoritarians have their own version of Democracy which does not include allowing its use to oust them if they gain power.

Jackson's views noted above come from his dissent in a 5 to 4 decision in which the majority overturned sanctions against a suspended Catholic priest, sponsored by Gerald L. K. Smith. The priest whipped up a mob into rock-throwing violence by calling all non-Christians “scum”, saw “danger from Jews of all stripes” and demanded they “should go back to where they came from." His audience responded “Jews are all killers, murderers – if we don't kill them first they will kill us."."

Jackson's response to that set of facts was one that could be written today following the Trump-inspired Capitol insurrection: 

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom it will convert the constitutional Bill of Rights into a suicide pact." 

Seventy years later, I suggest we stand on the threshold of that choice.

A bientot.

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