The first amendment to the U.S. Constitution states that the government may not establish any laws that “impede the free exercise of religion or abridging freedom of speech,” among other things. The F.B.I.’s recent attempts to force Apple to open private documents on the grounds that there might be information there that threatens the United States centers around the question of how much power the U.S. government actually has, given the wording of the First Amendment and our presumed right to privacy. Leaving aside for the moment the question of privacy, clearly the so-called “right” of free speech is guaranteed by the First Amendment, despite the fact that it speaks against the government’s misuse of its power, and not about the ordinary citizen at all. But the question has been raised repeatedly as to just what that “right” guarantees. The famous clounter-example is the alleged right to shout out “fire” in a crowded theater, and that has been something of a paradigm: the right to free speech does not extend so far as to endanger others. That would appear to be common sense.
The Supreme Court has dealt with numerous cases of alleged violations of the First Amendment on the part of the government, going back as far as 1919 when Eugene V. Deb’s outspoken opposition to the war led him to face 10 years in prison. Furthermore, as the following case will illustrate, in 1969 the Court ruled against the right to free speech when it is designed to incite a riot — which would be a corollary to the so-called right to shout “fire” in a crowded theater. I quote the always reliable Wikipedia at this point:
Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. [Italics added].
Now, given the undeniable fact that the leading candidate for the Republican nomination for the highest office in this land has said things that led inexorably (some would say) to violence — in the case of an alarming increase in the burning of Muslim Mosques in this country since the speeches began and the recent violence at his rallies where protesters have been struck and thrown to the ground by “security” personnel or by irate supporters of the candidate — one might ask whether this man’s outspoken bigotry and hate-and-fear-mongering ought to be allowed by law. It is apparently not speech protected by the First Amendment since it leads, apparently, to violence. Indeed, it would appear to be a clear case of speech “inciting, and likely to incite, imminent lawless action.”
It is interesting that this man’s crude and abominable behavior should raise such a question. If he were not running for the highest office in the country it would be a small item, hardly worth mentioning (though still interesting none the less). But given the circumstances, it strikes me that his behavior is not only lawless, but ought to disqualify him from the high office he seeks where he would be sworn to uphold the Constitution of the United States — a document about which he seems to be entirely ignorant, and which he flagrantly abuses.