Unusual, not because it’s rare to see an American journalist bowing to Islamic sensibilities on depictions of Mohammed but because typically they don’t go so far as to demand legal limits on their own profession. When the New York Times refuses to run a cartoon goofing on Islam, they don’t want the reason to be government censorship. They prefer to be censored by more sympathetic agents, like violent Muslim radicals.
To be precise here, though, DeWayne Wickham, the dean of Morgan State’s J-school, isn’t demanding a “Mohammed exception” to the First Amendment. He’s demanding an exception for all speech that would make the audience so angry that they might react violently — exactly the sort of slippery slope on censorship that people like you and me worry about when images of Mohammed are suppressed. Actual line from this op-ed, regarding the new cover of Charlie Hebdo: “The once little-known French satirical news weekly crossed the line that separates free speech from toxic talk.”
The most current issue of Charlie Hebdo again has Mohammed on its cover. This time, he appears crying under a headline that reads: “All is forgiven.” Well, apparently not. Ten people have been killed during protests in Niger, a former French colony. Other anti-French riots have erupted from North Africa to Asia. In reaction to all of this, Pope Francis has said of the magazine, “You cannot make fun of the faith of others.”…
In 1919, the Supreme Court ruled speech that presents a “clear and present danger” is not protected by the First Amendment. Crying “fire” in a quiet, uninhabited place is one thing, the court said. But “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
Twenty-two years later, the Supreme Court ruled that forms of expression that “inflict injury or tend to incite an immediate breach of the peace” are fighting words that are not protected by the First Amendment.
If Charlie Hebdo’s irreverent portrayal of Mohammed before the Jan. 7 attack wasn’t thought to constitute fighting words, or a clear and present danger, there should be no doubt now that the newspaper’s continued mocking of the Islamic prophet incites violence. And it pushes Charlie Hebdo’s free speech claim beyond the limits of the endurable.
Amazingly for a J-school prof, none of that is right. The Supreme Court hasn’t used the “clear and present danger” test for First Amendment cases in decades. The test now for inflammatory speech is the Brandenburg test, a strciter standard that allows the state to criminalize incitement only in narrow circumstances — when the speaker intends to incite violence and violence is likely to quickly result. Charlie Hebdo’s Mohammed cartoons may have met the “likely” prong of that test but they sure didn’t meet the “intent” part. The “fighting words” doctrine is still good law but it too has been gradually narrowed over time. Today, for the moment, it’s limited to “direct personal insults” between people who are face to face. That’s the key difference between publishing an offensive cartoon and, to borrow the Pope’s recent analogy, stepping up to a man and insulting his mother. From the Supreme Court’s perspective, those situations are apples and oranges. I appreciate Wickham’s candor in trying to expand “fighting words” to allow censorship of all kinds of offensive speech, though; I’ve worried about that myself, as longtime HA readers know. If speech can be criminalized because it angers a man to the point where he wants to attack you, why should we limit it to speech said in his presence? “Fighting words” is a potential trojan horse for smuggling all sorts of exceptions for “hate” into the First Amendment. I’m surprised more lefties aren’t as forthright as this guy is in making the case for it.
Someone should poll the media on whether they agree with Wickham’s “heckler’s veto” assumption that it’s Charlie Hebdo’s staff, rather than, say, the jihadis like Al Qaeda who put a bounty on them and ended up murdering them, that’s guilty of “incitement.” I’d be curious to see the numbers.
Update: I misspelled Wickham’s name at one point in this post. Fixed now.