Inside the First Amendment
By Gene Policinski
First Amendment Center vice president/executive director
With all due respect, none of the following people has ever made me do one thing differently in my life, except occasionally change the channel:
Bill O’Reilly, Keith Olbermann, Rush Limbaugh, Rachel Maddow and dozens of others whose job is to express their opinions via television or radio.
All of them — including Oprah, Rachel, Ellen, Conan, Jay and Dave — do occasionally entertain, intrigue, infuriate and (sorry) sometimes bore me. But they also often make me think. Sometimes I agree with them. Sometimes I don’t.
That’s the way free speech — and even cable TV — works. They get to talk. You and I get to pick and choose — whether to watch or listen, and certainly whether to believe or reject. And the menu is pretty good and varied, though, admittedly, conservatives seem to have the upper hand on talk radio.
The situation is worth noting because of a confluence of seemingly coincidental events and anniversaries:
- The blogosphere is awash in a debate over assertions that Fox News and more specifically Bill O’Reilly have direct responsibility for the May 31 shooting death of a Kansas doctor, Dr. George Tiller, who performed late-term abortions. Some even suggest criminal culpability.
- A New Jersey blogger agreed to surrender June 8 to Connecticut authorities to face charges of inciting violence against two lawmakers there.
- June 9 was the 40th anniversary of the landmark U.S. Supreme Court decision Brandenburg v. Ohio, reaffirming free-speech and free-press rights even when we are saying or writing things that stop just short of inciting violence.
- June 8 was the 200th anniversary of the death of Thomas Paine, the curmudgeon and critic who wrote the 1776 pamphlet Common Sense, which some credit with tipping a majority of delegates to the Continental Congress to declare independence from Great Britain.
The flap involving O’Reilly stems from stories he has done about Tiller and the abortion battle, along with other coverage by Fox News. Some accounts have him calling Tiller “Dr. Killer,” though O’Reilly disputes that. Opponents say his inflammatory language and more than two dozen critical reports mean he should share the blame for Tiller’s death. A columnist in Kansas City has written that anyone who called Tiller a “baby killer” was an accomplice to the murder.
The principles upheld in Brandenburg ought to deter any prosecutor from considering action against O’Reilly in terms of actual criminal charges. In that historic 1969 decision involving a Ku Klux Klan member, the Supreme Court held that even speech advocating force was protected unless it was a realistic attempt to incite “imminent lawless action.”
The Supreme Court set out a two-part test in its decision for advocacy to become “incitement”: The potential for lawless action has to be immediate and realistic. That distinction is more than just rhetorical. New Jersey blogger and former radio host Harold “Hal” Turner was arrested last week and Connecticut officials said he would be charged with inciting injury to two state lawmakers. According to news reports, police said Turner urged blog readers to “take up arms” against legislators who introduced a controversial bill on Catholic parish finances.
Even Thomas Paine could be seen as having tested today’s legal limits. In a recent essay published on the [email protected] Web site, writer David Boaz notes that Paine proposed two centuries ago “to execute any legislator who so much as proposed a bill to issue paper money and make it legal tender.”
The First Amendment provides that we may freely express our views and ideas without fear of government prosecution. The exception, not the rule, comes only under the very specific, proven circumstances provided for by Brandenburg.
If he survives, the idiot who shot and killed a guard June 10 at the Holocaust Museum in Washington, D.C., will be prosecuted in a court of law for his actions — as repellent as his anti-Semitic ideas and bigoted racial rants are.
In the main, judgment on public pundits and broadcast provocateurs is — and should be — rendered in the court of public opinion — by, as Paine and his contemporaries once put it, “We the People.”