Yesterday, we awoke to the news that a Draw Muhammad event in Garland, Texas was interrupted by a wannabe terrorist attack of two that was promptly squashed by the heavily armed security forces at the auditorium. Freedom of Speech was saved once again, much as it was when Neo-Nazis marched among Holocaust survivors and the Ku Klux Klan marched somewhere before illegal acts of violence and death. Then we have that Westboro Baptist church that seems to hate the US military and gays. The Garland event disturbed me on a personal level because I substitute taught in that school district happily for over five years, often in Bilingual Elementary. A saddened Garland resident noted that the Islamophobic event only drew 200 people in a city of 234,000–just east of Dallas https://twitter.com/TxMableRose.
Now we can’t cry “Fire!” in a crowded theater when there is none, nor create child pornography, so there are some limits. Are there any others? I decided to to an Internet search and go to a couple of Wikipedia sites first. http://en.wikipedia.org/wiki/United_States_free_speech_exceptions
“Fighting Words” is “speech that tends to incite an immediate breach of the peace” by provoking a fight. Personally abusive words are inherently likely to cause a violent reaction…a personal insult. Importantly, this charge is limited to private figures. Thus, I was within my rights when I yelled an expletive and “got in someone’s face” for his wearing of a Ho Chi Minh T-shirt in a public place. As a former ESOL teacher for South Vietnamese POW’s, I was incensed to see somebody proclaim the dictator of North Vietnam. I’m sure an older man who was a Vietnam War veteran would have behaved in a similar, if more violent, manner. However, my rage soon turned to sadness at the subsequent childish ramblings of my much younger acquaintance.
The “Fighting Words” limit was upheld in the Supreme Court in the Chaplinsky vs. New Hampshire, 1942 verdict. Chief Justice Frank Murphy upheld the arrest of a Jehovah Witness sidewalk preacher, who called his arresting officer a (bleep) racketeer and damned fascist while organized religion is a racket. Such fighting words neither contributed to the expression of idea nor something of value in the search for the truth. Note that these fascist accusations occurred at the peak of World War II! http://en.wikipedia.org/wiki/Fighting_words
“Intentional Infliction of Emotional Distress” (IED) occurs when the defendant (1) acts intentionally or recklessly, (2) is extreme and outrageous in conduct, and (3) act is the cause of distress. (4) The plaintiff suffers severe emotional distress as a result of the defendant’s conduct. http://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress
“Extreme & Outrageous Conduct” involves the following: (1) a pattern of conduct, not an isolated incident; (2) the plaintiff was vulnerable and the defendant knew it; (3) the defendant was in a position of power; (4) racial slurs were used; and (5) the defendant owed the plaintiff a fiduciary duty, which means a legal or ethical relationship of trust. Pay close attention to #3: The defendant was in a position of power. That’s the opposite of the grounds for prosecuting the “Fighting Words” version of the limits to freedom of speech.
Let’s look at some earlier highlights in the career of Geert Wilders, a guest speaker at the Draw Muhammad contest in Garland http://www.economist.com/news/international/21640748-netherlands-restrictions-free-speech-allow-provocateurs-pose-martyrs-illiberal
Wilders incited a crowd of followers to shout that they wanted “fewer Moroccans,” to which he replied: “Then we’ll see to that.” He faces prosecution for remarks prosecutors say demonized a population group rather than criticizing a religion. Wilders uses prosecutions to be a martyr for free expression. Wilders has the ongoing goal of banning the Koran by comparing it to Hitler’s Mein Kamf, a manifesto that’s banned in The Netherlands.
McClatchyDC.com cites a political science professor who points to “fighting words” and inciting.”
“There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte.
“Fighting words is the idea that you are saying something that is so offensive that it will lead to an immediate breach of the peace,” Szmer explained. “In other words, you are saying something and you should expect a violent reaction by other people.” The exhibit of cartoons in Texas might have crossed the line, Szmer said. “I don’t think it is unreasonable to expect what they were doing would incite a violent reaction,” he said.
The event was sponsored by the American Freedom Defense Initiative, an anti-Muslim hate group, according to the Southern Poverty Law Center. Its leader, Pamela Geller has made outrageous statements, such as President Barack Obama is the love child of Malcolm X. http://www.mcclatchydc.com/2015/05/04/265537/after-texas-shooting-if-free-speech.html
Since Ms. Geller and Mr. Wilders are public figures, they could have been taken to court under the “extreme and outrageous conduct” limit to free speech. They are in a “position of power” and it’s certainly a “pattern of behavior, not an isolated event.” In the previous decade, I received a remark on a Developmental English competency exam that I’ve grown to respect. The essay prompt was “Should there be free speech on campus?” The young lady wrote that nobody should bad-mouth someone’s momma. We need that spirit in interfaith discussions; either that, or bring back the duel.