The Devil, You say? Them's Fightin' Words In These Parts, Son. The "Free Speech" Debate and When Words Cause Harm.
(This Article Appeared in a Different Version/Form on my
facebook page)
By D Michael Blackie, D.D. Litt. D.
The
#FirstAmendment of The Constitution of The United States of America ["The Bill of Rights"] (The First Ten 'Amendments' to The Constitution) states that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petitition the Government for a redress of grievances.".
In the
"Fighting words" doctrine, in United States constitutional law, - a limitation to freedom of speech as protected by the First Amendment to the United States Constitution is codified, not just implied. In 1942, the U.S. Supreme Court (SCOTUS) established the doctrine by a 9–0 decision in "Chaplinsky v. New Hampshire"; 315 U.S. 568 (1942), words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace. ...
In the past, the primary legal test used in the United States to determine if speech could be criminalized was called the "bad tendency" test. It was rooted in
"English Common Law". The 'test' permitted certain speech to be outlawed - 'if it had a tendency to harm public welfare'.
"Clear and Present Danger" Doctrine was adopted later by SCOTUS to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly. The test was replaced in 1969 with Brandenburg v Ohio’s “Imminent Lawless Action” test.
So, "Imminent Lawless Action" is a standard currently used that was established by the United States Supreme Court in
Brandenburg v. Ohio (1969), for defining limits of free speech.
Brandenburg clarified what constituted a "clear and present danger", [the standard established by Schenck v. United States (1919), and overruled
Whitney v. California (1927)], which had held that speech that merely 'advocated violence' could be made illegal.
While the precise meaning of
"imminent" may be ambiguous in some cases, the court provided later clarification [in Hess v. Indiana (1973)] in which the court found that Hess's words did not fall outside the limits of protected speech, in part, because his speech "amounted to nothing more than advocacy of illegal action at some indefinite future time...", and therefore did not meet the imminence requirement.
The two legal prongs that constitute incitement of imminent lawless action is as follows:
Advocacy of force or criminal activity does not receive First Amendment protections if (1) the advocacy is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action...
Another category, known as
"Fighting words" are a category of speech that is
UNPROTECTED by the First Amendment. Likewise,
"Clear and Present Danger" was a doctrine adopted by the SCOTUS to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press, or assembly.
So, Freedom of Speech then, does NOT mean that a person, any person, can say whatever they want to say. Freedom of Speech means that someone's right to say something is protected within certain limits. ... A person has the right to say it, but they also have to be aware of and responsible for the consequences.
So, as Public Officials and "Media" 'personalities', celebrities in some circles, say hateful, incitefullly violent things-- are they "Fighting words", or incitement of imminent 'lawless action'? Do their careless, callous statements cause lawless action?
"
The first thing we do, let's kill all the lawyers.", is a line from a
Shakespeare play (Henry VI, Part 2, Act IV, Scene 2). Porr ole Dick the Butcher! He's been oft quoted and misquoted since! But, If I go out after seeing and hearing that- and start killing lawyers, would Billy Shakespeaere be accountable, were he alive? (Likely not--because it was BEFORE The US was the US
[1597]), or SCOTUS protections, or punishments!
Are we responsible for our own actions? Or, can others' irresponsible, misguided--or, perhaps calculated 'speech' make us do things?
"The Devil made Me Do It"? I think the 'devil' gets a bad rap. We've been blaming him since the beginning of time. Time for
someone, somebody, anybody, to stand up and face responsibility-- for
words, and their resultant
actions!
This "Commentary/EDITORIAL"
© DMB dba ARGO-Liberty Communications~Philadelphia
29-Jun-2018
Previously appeared in a different format/version
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© D. Michael Blackie, Principal/Owner 2018 aka Brother Michael, OSL ALL RIGHTS RESERVED
DMB Communications dba ARGO-Liberty Communications~Philadelphia, LLC