Yet more journalists not grasping the First Amendment

I hit this topic earlier today, but unfortunately more examples of journalistic ignorance of free speech keep emerging. The latest example from McClatchy’s Washington bureau shows that the limitation of education on free speech and the First Amendment goes beyond the confines of MSNBC. Lindsay Wise and Jonathan Landay muse as to whether there should be limits to speech based on the fact that free speech can be — wait for it — “provocative”:


The attack highlights the tensions between protecting Americans’ treasured right to freedom of expression and preserving public safety, and it raises questions about when – if ever – government should intervene.

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. …

Organizers knew, he said, that caricatures of the Prophet Muhammad, which many Muslims consider insulting, have sparked violence before. In a recent case that drew worldwide attention, gunmen claiming allegiance with the self-described Islamic State killed 12 people in an attack on the Paris offices of the French magazine Charlie Hebdo, which was known for satirical depictions of the Prophet Muhammad.

On the other hand, “fighting words can contradict the basic values that underlie freedom of speech,” Szmer said. “The views being expressed at the conference could be seen as social commentary. Political and social speech should be protected. You are arguably talking about social commentary.”

It’s unlikely that the issue will be tested in the Garland case, however, because prosecutors in Texas almost certainly won’t press charges against the conference organizers, he said.


Where to start? Thankfully, Ken White at Popehat has already plowed this ground with a detailed fisking of the article. Calling it “a target-rich environment” (is that provocative?), White rips apart almost every assumption made by Wise and Landay, especially on the meaning of terms used by them:

They begin by pointing out that the organizers of the Muhammad Art Exhibit arranged for extra security, suggesting that because they contemplated the risk of violence that they should not have spoken. But how is that a just or relevant standard? Would Wise and Landay approach Russian gay rights protestors and tell them to shut up because they could predict a bloody, brutal response from thugs? Would they rebuke the organizers of May Day marches, which seem reliably to produce violence by some bad actors?

Wise and Landay discuss “fighting words” and “incitement” doctrine much in the same way that Evan Kohlmann discussed the “shouting fire in a crowded theater” exception, which is to say in utter ignorance. White explains what the terms actually mean:

Moreover, “incitement” and “fighting words” are not the same thing. “Incitement” is urging others to break the law, and only falls outside the First Amendment when it is intended and likely to produce imminent lawless action. “Fighting words” are, in effect, a direct challenge to fight. …

That’s a bad paraphrase of the very narrow fighting words doctrine, which has been limited to face-to-face insults that would provoke an immediate violent reaction from a reasonable person. … The test for fighting words isn’t whether the words contain social commentary; it’s whether they are likely to provoke an average person to immediate face-to-face violence.


The problem isn’t just that a couple of Americans don’t understand the nuances of free speech; as the Huffington Post’s Ryan Reilly pointed out earlier on Twitter, a substantial number of Americans haven’t educated themselves on it. The problem is that these journalists are attempting to educate those Americans without first educating themselves, which is what angers White the most:

Established First Amendment exceptions are carefully defined and objective, but “provocation” as a measure of censorship cedes all authority to the offended and provoked. Can people who react violently to speech — to cartoons — be expected to be judicious in selecting the topics that will provoke them to aggression? Wise and Landay are effectively inviting people to be more violent in order to control what speech is permissible.

This is journalism?

It seems to be this week, anyway. For instance, here’s the headline on a Washington Post article written by Sandhya Somashekhar about the attack — which focuses on a lack of remorse from one of its intended victims, Pamela Geller: “Event organizer offers no apology after thwarted attack in Texas.” Is it common for journalists to seek signs of remorse from crime victims, and to make a lack of such the lead for a story?


The ignorance of the stakes involved extends even to those who supposedly stand for free speech, as The Daily Beast’s Michael Moynihan highlights today. Members of PEN, a group who supposedly stands for defense of free speech, publicly rebuked the organization for honoring the dead Charlie Hebdo artists and editors, a move which Moynihan acerbically skewers, especially for comparing Charlie Hebdo — a left-leaning satirical magazine — with Nazis:

Adolf Hitler. Josef Goebbels. Julius Streicher. Stephane Charbonnier. Perhaps those invoking famous Nazis can’t differentiate between spewing eliminationist rhetoric and mocking religious radicals who spread eliminationist rhetoric.

But back once more to SOS-Racisme’s Dominique Sopo. In his 2005 book SOS Antiracisme, Sopo outlined the landscape of ethnic hatred in France while also pointing out that Islamists—a generally racist bunch—often escape scrutiny, having learned “to count on a powerful ally: the post-colonial bad conscience.”

In its letter to PEN, the now 200-strong dissident faction proved Sopo’s point, arguing that “to the section of the French population that is already marginalized, embattled, and victimized, a population that is shaped by the legacy of France’s various colonial enterprises, and that contains a large percentage of devout Muslims, must be seen as being intended to cause further humiliation and suffering.”

PEN’s dissident Fanonists might stay away from Tuesday night’s ceremony, or make a bold stand against the nonexistent racism of 12 dead journalists by refusing to clap for the one who got away, or simply hope that next year’s Courage Award honoree will have been murdered for inoffensive journalism that comports with the bien pensant opinions of America’s literary class.


As I wrote in my column at The Week today, “People who write uncontroversial opinions and draw pictures of pretty flowers aren’t usually found on the front lines of the free speech fight.”

PEN America honored Charlie Hebdo for that commitment to fearless free speech — and hoped to send a message to those who would silence speech at the point of a gun or the blast radius of a bomb.

As the organizers stated in their response, no one has to “endorse the content of Charlie Hebdo‘s cartoons in order to affirm the importance” of satire and free speech. Novelist Salman Rushdie, a former PEN president and the target of an Iranian fatwa for The Satanic Verses, put it more succinctly. “If PEN as a free speech organization can’t defend and celebrate people who have been murdered for drawing pictures, then frankly the organization is not worth the name.”

There are journalists who may need some remedial instruction on defense of free speech — and why it should matter most to those who operate in the free-speech arena.

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