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Speak no evil? Why tightening up on anti-Obama speech is a bad idea
The Boston Phoenix ^ | January 14, 2009 | ADAM REILLY

Posted on 01/20/2009 12:20:47 PM PST by nickcarraway

Anthony Lewis's free-speech credentials are impeccable: among other things, the former New York Times columnist is James Madison Visiting Professor of First Amendment Issues at Columbia University's journalism school; was fêted by the National Coalition Against Censorship this past fall; and chronicles the First Amendment's history in his most recent book, Freedom for the Thought That We Hate: A Biography of the First Amendment (Basic Books). Recently, though, Lewis has been reassessing the legal standard for how far threatening speech should be allowed to go. The key precedent here is 1969's Brandenburg v. Ohio, in which the Supreme Court ruled that calls for violence against Jews and blacks at a Ku Klux Klan rally were legal: such advocacy is protected, the court found, unless it's "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Harvey Silverglate — the chairman of the board of directors of the Foundation for Individual Rights in Education, and a regular Phoenix contributor — explains the "imminence standard" thusly: "If you get a speaker who gets up there and says, 'All Jews and blacks should be hung,' that is fully protected. But if the speaker says, 'There's a Jewish neighborhood or a black neighborhood two blocks down the road. Let's go down there and lynch them,' that gets into an area where the speech that's recommending action becomes more realistic — more imminent."

In Freedom for the Thought That We Hate, however, Lewis suggests that, in the context of the so-called War on Terror, a more expansive reading of Brandenburg's imminence standard might be appropriate. And he makes a similar — albeit hypothetical — argument regarding anti-Obama speech.

"If somebody tried to assassinate Obama," says Lewis, "and upon further examination it turned out that they were a regular listener to Sean Hannity [of Premier Radio, ABC Radio, and Fox News] — and decided, on the basis of Hannity's many broadcasts, that Obama was trying to destroy the United States — would that justify shutting Hannity down and curbing speech in some way? It's hard to say . . . but if it had that effect, surely the imminence requirement is at least partially met."

Surprisingly, Lewis isn't the only civil libertarian thinking along these lines. Gene Policinski, the vice-president and executive director of the Tennessee-based First Amendment Center, says there's a chance that the courts will pay closer attention to extreme anti-Obama speech than they have to speech regarding previous presidents. "I think there's great concern, since he's the first African-American president," says Policinski. "And given our history of violence directed at African-Americans — particularly those who stand out by challenging the status quo — the courts may see these kinds of expression in a much more serious and immediate way." (One of those African-Americans, Martin Luther King, was assassinated in the state where the First Amendment Center is headquartered.)

But altering free-speech protections out of concern for Obama could have devastating implications for our collective right to criticize political authority. Think back to 2004: even though the nation was engaged in multiple wars and guarding against another 9/11 — and even though President George W. Bush was genuinely despised by a healthy segment of the populace — author Nicholson Baker was still free to write and publish Checkpoint, a novel in which two men debate taking Bush's life. And two years later, the British mockumentary Death of a President— in which Bush's (simulated) assassination is followed by a third Patriot Act and a massive crackdown on civil liberties — was allowed to open in the United States, despite public condemnation and the unwillingness of some theater chains to screen it.

The ancillary effects of such a hypothetical expansion also need to be considered. New restrictions on anti-Obama speech could legitimize paranoid conservative fears that Obama plans to silence his opponents, for example — thereby exacerbating anti-Obama animus. Consider, too, that by making hateful attitudes known, the First Amendment allows society to respond in kind. "The theory of the First Amendment actually makes a lot of social sense," notes Silverglate. "It's very useful to know who wants to hang the Jews and the blacks." Penalize the ugliest anti-Obama speech, and this benefit vanishes.

If you're an Obama booster who thinks concern for his safety might justify even an incremental erosion of free speech, ask yourself: did Checkpoint and Death of a President bother you at the time? Do they bother you now? (Be honest.) And how would you feel if — four or eight years from now — expanded limits on speech that originated during an Obama administration led to the censorship of texts deemed too threatening to, say, President Sarah Palin?

"We need to have historical humility," says Nadine Strossen, the former president of the American Civil Liberties Union and a professor at New York Law School. "Each era tends to have historical hubris — 'This is the greatest danger ever posed to the values we hold most dear.' We tend always to exaggerate the danger — and to unnecessarily cut off civil liberties."


TOPICS: Constitution/Conservatism; Culture/Society; Extended News; Political Humor/Cartoons
KEYWORDS: beafraid; bloat; freespeech; scary; stockpile
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1 posted on 01/20/2009 12:20:50 PM PST by nickcarraway
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To: nickcarraway

“President Sarah Palin”

I LOVE the sound of that!!!! It’ll happen in 4 years!!!! OH YEAH!!!!!!!

SARAH!!!!!! SARAH!!!!! SARAH!!!!!!


2 posted on 01/20/2009 12:24:25 PM PST by wk4bush2004 (SARAH PALIN, 2012!!!!!!!)
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To: nickcarraway

Liberals love the freedom to criticize government...except when they’re in charge.


3 posted on 01/20/2009 12:24:27 PM PST by MahatmaGandu (Remember, remember, the twenty-sixth of November.)
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To: nickcarraway

I guess ignorance of real interracial crime stats is another part of the deceitful MSM.


4 posted on 01/20/2009 12:24:46 PM PST by wac3rd (In the end, we all are Conservative, some just need their lives jolted to realize that fact.)
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To: nickcarraway
"If somebody tried to assassinate Obama," says Lewis, "and upon further examination it turned out that they were a regular listener to Sean Hannity [of Premier Radio, ABC Radio, and Fox News] — and decided, on the basis of Hannity's many broadcasts, that Obama was trying to destroy the United States — would that justify shutting Hannity down and curbing speech in some way? It's hard to say . . . but if it had that effect, surely the imminence requirement is at least partially met."

Commmunist Anthony Lewis does his best Bildo Klintoon hate radio impersonation as he provides the rationale for reinstituting the Fairness Doctrine. Ah yes, change.

5 posted on 01/20/2009 12:25:18 PM PST by Dahoser (America's great untapped alternative energy source: The Founding Fathers spinning in their graves.)
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To: nickcarraway
There were eight years of Bush bashing (which will continue for a while until the MSM gets bored with it) prior to that there were eight years of Reagan bashing (BMT) ... IOW - read Republican bashing since Lincoln .....

Turn about is fair play to me ....

6 posted on 01/20/2009 12:25:55 PM PST by SkyDancer ("Talent Without Ambition Is Sad, Ambition Without Talent Is Worse")
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To: nickcarraway

>> [Nadine Strossen, the former president of the American Civil Liberties Union and a professor at New York Law School]: “Each era tends to have historical hubris... We tend always to exaggerate the danger — and to unnecessarily cut off civil liberties.”

If I’m arrested by the Thought Crimes Division of the Obama DOJ for “anti-Obama thinking and speech”, will the ACLU come to my defense, Nadine?

Yeah, I didn’t think so.


7 posted on 01/20/2009 12:29:05 PM PST by Nervous Tick (I've left Cynical City... bound for Jaded.)
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To: nickcarraway

Death of a President was nothing more than an “aww shucks we can’t kill him” movie. The idea they were communicating was “Yes, we know you all would like to kill president Bush. We understand you, we approve of the sentiment, but it just wouldn’t work.” Anyone who saw it (and I damn sure did, although I didn’t pay for it :) ) would understand that. Anyone who saw it and had a sense of decency would have been royally pissed.


8 posted on 01/20/2009 12:30:37 PM PST by domenad (In all things, in all ways, at all times, let honor guide me.)
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To: nickcarraway

“If you’re an Obama booster who thinks concern for his safety might justify even an incremental erosion of free speech, ask yourself: did Checkpoint and Death of a President bother you at the time? Do they bother you now? (Be honest.) And how would you feel if — four or eight years from now — expanded limits on speech that originated during an Obama administration led to the censorship of texts deemed too threatening to, say, President Sarah Palin?”

I have used almost verbatim the last 8 years comments about various expansion of federal powers supported by many freepers, just subbing ‘president hillary’ for palin...


9 posted on 01/20/2009 12:31:01 PM PST by WoofDog123
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To: MahatmaGandu
"LA Times promises to call Obama out if he doesn't fulfill his promises, which is not likely to happen because he's so eloquent and patient and intelligent.
10 posted on 01/20/2009 12:31:50 PM PST by SkyDancer ("Talent Without Ambition Is Sad, Ambition Without Talent Is Worse")
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To: Dahoser
upon further examination it turned out that they were a regular listener to Sean Hannity [of Premier Radio, ABC Radio, and Fox News] — and decided, on the basis of Hannity's many broadcasts, that Obama was trying to destroy the United States — would that justify shutting Hannity down and curbing speech in some way?

But when law enforcement finds NAMBLA published material on how to seduce and rape little boys and get away with it in a pedo's car after he's been caught doing just that, it's protected speech that the ACLU needs to defend vigorously. The double standards liberals try to force on freedom are breathtaking.
11 posted on 01/20/2009 12:38:46 PM PST by messierhunter
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To: wac3rd

Uh...*cough* ‘swept under the rug’ *cough*


12 posted on 01/20/2009 12:39:02 PM PST by 45semi ("Islam has bloody borders" - Samuel Huntington)
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To: Dahoser

The Fairness Doctrine is another step in the socialist scheme to bring down private business. Forcing companies to hold air time to unpopular commentators, will cause those businesses to fail. No more political radio or tv. Then all news can be government run.
Socialists take baby steps but they are almost to the end.


13 posted on 01/20/2009 12:39:32 PM PST by ritewingwarrior (Just say No to socialism.)
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To: nickcarraway
"If you get a speaker who gets up there and says, 'All Jews and blacks should be hung,'

I suspect he means hanged.

14 posted on 01/20/2009 12:44:10 PM PST by Mr. Mojo
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To: wk4bush2004

You just brightened my day immensely. Thanks!


15 posted on 01/20/2009 12:44:24 PM PST by sionnsar (IranAzadi|5yst3m 0wn3d-it's N0t Y0ur5(SONY)|http://trad-anglican.faithweb.com/|TaglineSpaceForRent)
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To: Nervous Tick
They probably would. Say what you will about the ACLU, but they take a pretty solid position on free speech and are consistent in defending that position. They at least know that it would be absurd to take the approach Anthony Lewis suggests here.

Only a journalist (Lewis never went to law school, and he really has no business giving an opinion on this issue like he's some kind of authority) could say something this mind-blowingly stupid:

"If somebody tried to assassinate Obama," says Lewis, "and upon further examination it turned out that they were a regular listener to Sean Hannity [of Premier Radio, ABC Radio, and Fox News] — and decided, on the basis of Hannity's many broadcasts, that Obama was trying to destroy the United States — would that justify shutting Hannity down and curbing speech in some way? It's hard to say . . . but if it had that effect, surely the imminence requirement is at least partially met."

16 posted on 01/20/2009 12:50:37 PM PST by Arguendo
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To: nickcarraway
says there's a chance that the courts will pay closer attention to extreme anti-Obama speech than they have to speech regarding previous presidents.

The Left made movies and books about assassinating President Bush (who managed to escape the "zero factor"just as did President Reagan, can we put that superstition away now) and Randi Rhodes made several on air death threats at Bush while he was president (including a statement about how someone should take him outside and 'kapow' like on the Sopranos).

I would speak out against anyone who made such works of art or broadcasts against Obama or any president. I don't think that the words or actions of a hypothetical Sean Hannity LISTENER should be used to condemn Sean Hannity. After all, the Unabomber took Al Gore Jr.'s "Earth In The Balance" to heart and had a copy in his shack. They need to be very careful using this line of reasoning to shut down political enemies (who offer no threat to the constitution or country).

17 posted on 01/20/2009 12:53:24 PM PST by a fool in paradise
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To: Arguendo

The ACLU gave Courtney Love a free speech award at the same time she was leaving violent threat messages on a journalist’s answering machine for investigating the suspicious death of Kurt Cobain.


18 posted on 01/20/2009 12:54:39 PM PST by a fool in paradise
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To: Mr. Mojo

Maybe it’s a Freudian slip.


19 posted on 01/20/2009 12:55:44 PM PST by a fool in paradise
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To: ritewingwarrior

We have the next “best” thing to state run media. We have a purely partisan press. Not a news environment with differing editorial viewpoints, but a dominant press (radio news, tv news, information, and entertainment, film, magazine, newspaper) monopoly that spouts the DNC talking points every day. Clearly there has been outright collusion with the Democrat Party on some stories.

They don’t want an “end” to political content, their agenda is to politicize everything.

And if they hand over the reigns to government control/oversight, they risk losing their control when they are out of power.

They are Socialist yes, but even CPUSA published their newspaper on their own.


20 posted on 01/20/2009 12:59:57 PM PST by a fool in paradise
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