A Hanging Chair and the First Amendment

by: Edward Garris

Fri Sep 21, 2012 at 00:30 PM CDT

Today, Mr. Johnson has taken the chair down from the tree, and stated that it was not a racist display.  So, the chair can be characterized as many things, but is it legal?

In the United States, the First Amendment recognizes a hierarchy of speech with political speech sitting at the top, and things such as obscenity and defamation lurking at the bottom. Insulting or fighting words reside near the lower end of the hierarchy, long deemed to offer "no essential part of any exposition of ideas."

The First Amendment has protected and continues to protect some pretty odious speech.  To determine whether Mr. Johnson's chair merits that protection, it is necessary to decide what type of speech the chair was and where it "sat" on the hierarchy.  Is it political speech? Is it threatening speech?  Is it hate speech?

Find out below the jump.  

Assuming that Mr. Johnson's chair display was political speech, courts would tread more cautiously before striking it down, although no rights are absolute.  Even if it was political, was Mr. Johnson's display advocating violence?  Since the U.S. Supreme Court decision in Schenk v. United States, 249 U.S. 47 (1919), at a broad level, words advocating unlawful conduct - even violence - have enjoyed some protection.  Schenk stated:

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."

The U.S. Supreme Court in Bridges v. California, 314 U.S. 252 (1941) clarified the clear and present danger standard, stating that "the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."  In 1969, in Brandenburg v. Ohio, 395 U.S. 444, the Court overturned the conviction of a member of the Ku Klux Klan in Ohio, who was convicted under an Ohio statute that forbade the advocacy of violence and terrorism (among other means) as a means of reform, for his actions leading a rally against African-Americans and Jews.

The key to these cases is that while hate speech or speech that advocates violence may be disturbing or unpalatable, it may be protected, so long as there is no actual incitement to engage in the acts - for lack of a better description - there and then.

HATE SPEECH

What if the chair was hate speech?

In recent memory, the Court did uphold the exercise of hate speech in Minnesota.  In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the defendant burned a cross on the lawn of an African-American family.  The defendant was charged under a local ordinance which prohibited the display of burning crosses, swastikas, and the like.  

Reasoning that content-based restrictions are presumptively invalid, Justice Antonin Scalia made a large exception from First Amendment protection - restrictions on the content of speech "of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."  He then struck down the ordinance because it was viewpoint discrimination.  While briefly nodding to the "reprehensible" nature of the burning cross, Justice Scalia nevertheless struck down the "selective [limitation] upon speech" that prohibited a "distinctive idea, conveyed by a distinctive message."  He distinguished the burning cross on the front law of a minority family from fighting words that would otherwise would have been prohibited because fighting words "[embody] a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey."  Here, he argued, the ordinance did not bar the method; rather it barred the message itself and thus violated the First Amendment.  

Even when presented with the argument of the City of St. Paul - that they had a compelling interest - "to ensure the basic human rights of members of groups...including the right to live in peace where they wish" - Scalia still demurred, calling for content neutral alternatives.  

Possibly one of the most famous defenses of hate speech came out of the Chicago suburbs in 1977 and 1978. The National Socialist Party of America (NSP) (often referred to in shorthand as Nazis) wanted to hold a rally in Skokie, Illinois, a town with a majority Jewish population, thousands of whom were, in fact, Holocaust survivors.  Skokie sought to stop the rally, and the battle went up to the Illinois Supreme Court and then the United States Supreme Court.  Parallel to the court battle, Skokie enacted ordinances to block the march - all of which were held to violate the First Amendment by the federal appeals court in Chicago, which the U.S. Supreme Court declined to overturn. The rally in Skokie never happened but ultimately was held in Chicago.  In addition to its example of how versatile and even-handed the First Amendment can be, the Skokie case also led to this gem from The Blues Brothers , which gets pretty good about a minute into the clip.

THREATENING THE PRESIDENT

But what if the speech threatens the President of the United States?

According to Wikipedia:

"threatening the government officials of the United States is a serious crime under federal law. Threatening the President of the United States is a Class D felony under 18 U.S.C. § 871, punishable by 5 years of imprisonment, that is investigated by the United States Secret Service."

Mr. Johnson did say on Wednesday that Burnt Orange Report could go to hell and could take Mr. Obama with it, taking further advantage of the First Amendment's Free Exercise Clause.  But that is another story.