DBP
► Free Speech
The right to speak freely is clearly a moving target. That it is not absolute is evident from the fact that it has been tested in court so many times and with such a variety of outcomes.
Is burning a flag free speech?
SCOTUS says “Yes.”
Is yelling “Fire!” in a crowded theater free speech?
SCOTUS says “No.”
Is a “Bong Hits 4 Jesus” banner free speech?
SCOTUS says “Depends.”
http://en.wikipedia.org/wiki/Morse_v._Frederick
In the Awlaki case, what is at issue is whether Awlaki’s speech (urging the Muslim faithful to do jihad against America, issuing fatwas, etc.) would likely have led to harm to others in such a way that Awlaki could have reasonably anticipated.
To answer that question, let’s consider three real-life scenarios in which one person makes threats, either directly or indirectly, against another. Then you can decide for yourselves which of the three cases is most similar to Awlaki’s.
Case 1: A mentally ill person stands on a street corner shouting that someone should kill the President because the President is “an alien.”
Protected? –Sort of.
Since the dude isn’t in his right mind, he can’t be said to have free agency over his actions. Moreover, since he’s standing on the street haranguing casual passersby, he isn’t inciting people to do something they’d be capable of or inclined to do anyway. The worst that is likely to happen to this guy is that someone will smack him around a bit or the police will take him in for an evaluation. And next time the Prez is in town, the Secret Service may pay him a social call.
Case 2: An anti-abortion firebrand posts a Web page with a gunsight superimposed over the face of an abortion doctor, all under the headline “Wanted for Murder: Dead or Alive!” The Web site also lists the abortionist’s home address.
Protected? –Probably. Similar cases have been tested and qualified as free speech. The reason is because the Web page poster cannot know who will see the Web page. (Will the viewers include an anti-abortion martyr inclined to shoot a doctor? Nobody knows.) Moreover, the poster is not specifically inciting anyone to do murder. In court, his lawyers would probably say that he was merely drawing an analogy between abortionists and outlaws.
Case 3: At a “public” meeting of anti-abortion zealots, a speaker stands up and offers $1000 to any person who shoots an abortionist. In the audience (and known to the speaker) is at least one person who has already made an attempt on the life of an abortion doctor.
Protected? –No. The speaker is knowingly encouraging persons with a penchant for violence to go out and commit more violence. Not only is this not protected, it almost meets the legal test for a conspiracy to commit murder.
Should one of the people in the meeting stand up and shout: “I’m with you brother! I’ll do it.” –that probably WOULD constitute conspiracy.
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So which of these three cases was Awlaki most like?
Consider the following:
He incited people to violence.
He was in his right mind when he did so.
He knew the crowd he was talking to.