"If this country doesn't give us what we want, then we will burn down this system and replace it. All right? And I could be speaking ... figuratively. I could be speaking literally. It's a matter of interpretation.”
That’s Hawk Newsome talking on Fox News the other night. He is described as a president of the Greater New York Black Lives Matter. He glared into the camera in a black – of course – t-shirt, sporting a white cap emblazoned with the words Soul Not For Sale. He draws a too-cute and legally unnecessary distinction between the literal and figurative import of his works. His speech is protected under the First Amendment.
Mr. Newsome when on to justify his remarks: "Let's observe the history of the 1960s, when black people were rioting," he went on. "We had the highest growth in wealth, in property ownership. Think about the last few weeks since we started protesting. There have been eight cops fired across the country."
You could be forgiven for thinking this young man, I perhaps date myself, but everyone looks young these days, was justifying arson, looting and insurrection. President Donald Trump certainly took it that way, sputtering that Mr. Newsome was involved in treason and insurrection.
I’m no fan of Black Lives Matter. The groups strikes me as a front group for a broader movement to try to persuade the country that the current generation of black Americans – the people Mr. Newsome contends benefited so handsomely from the violence of the riots in 1968 – deserve cash payments, reparations, from the United States government for slavery, Jim Crow and their current woes, It’s a shakedown worth of a Kremlin propagandist.
The truth is that Mr. Newsome’s incendiary speech is almost certainly protected by the First Amendment. As is so often the case, Trump’s bluster about criminal prosecution is, to put in terms appropriate to these racially charged times, little more than white noise. (I hope I can say that without offending the sensibilities of some oppressed soul hiding under a couch in their parents’ basement.)
A handful of United States Supreme Court cases inform my analysis that Mr. Newsome’s black bluster is protected speech.
“[T]he constitutional guarantees of free press and free speech do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio (1969) In a 1997 case, a federal appeals court, relying on Brandenburg, stated: “one of the most indispensable freedoms is that to express in the most impassioned terms the most passionate disagreement with the laws themselves, the institutions of, and created by, law, and the individual officials with whom the laws and institutions are entrusted. Without the freedom to criticize that which constrains, there is no freedom at all.” Thus, speech that “‘advocates [a] law violation [is protected by the first amendment] except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’”
To lose First Amendment protection, comments at issue must (1) be directed to inciting or producing imminent lawless action and (2) likely to incite or produce the action advocated. Mr. Newsome appears to be on the safe side of that line.
An expression of a desire to see another person dead, even to wish in some hypothetical future to be the executioner of a foe, is not enough to transform an abstract hope into an imminent threat. “Sometime I will see the time we can stand a person like this S.O.B. against the wall … and shoot him,” the defendant said inNoto v. United States, (1961). The Supreme Court was unmoved: “Surely the offhand remarks that certain individuals hostile to the [Communist] Party would one day be shot cannot demonstrate more than the venomous or spiteful attitude of the Party toward its enemies, and might be expected from the Party if it should ever succeed to power…. It is present advocacy, and not an intent to advocate in the future or a conspiracy to advocate in the future once groundwork has been laid, which is an element of the crime….”
“Political hyperbole” is distinguishable from a true or imminent threat. Thus, a speaker convicted of violating a federal law against threatening to take the life of the president had his conviction vacated when the Supreme Court concluded the following utterance was protected speech when uttered by a draft resister: “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” Watts v. United States (1969).
A menacing utterance spoken directly to another person is also protected. The Supreme Court considered both the context in which an utterance was made and the emotionally charged nature of the speech itself in concluding that the following was protected speech: An NAACP organizer told a group of African-Americans attending a rally in support of the boycott of white-owned business: “If we catch any of you going in any of those racist stores, we’re gonna break your damn neck.” NAACP v. Claiborne Hardware Co.(1982). “[M]ere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment.”
In the passionate atmosphere in which the speeches were delivered, they might have been understood as inviting an unlawful form of discipline or, at least, intending to create a fear of violence whether or not improper discipline was specifically intended…. The emotionally charged rhetoric of … [the language] did not transcend the bounds of protected speech…
Finally, in Hess v. Indiana (1973) the Court overturned the conviction of a Vietnam antiwar protestor who uttered to a crowd of activists who had just been removed from a public street by local law enforcement agents: “[W]e’ll take the fucking street later (or again).” The Court determined this utterance was, “at worst, … nothing more than advocacy of illegal action at some indefinite future time.”
So Mr. Newsome is on the safe side of the law, in my view, and Trump’s bluster signifies nothing. Of course, what’s sauce for the arsonist is sauce for the property owner. I suspect a person saying “should you seek to burn your way into my pocketbook I’ve some lead you can eat” would also be engaging in protected speech in these incendiary times.
We are, it seems, that close to open violence. It’s hard to know what will yield first, well settled constitutional law, or the bonds of trust that hold us together as a society.