usmbguest5318
Gold Member
- Jan 1, 2017
- 10,923
- 1,635
No; however, there's more to free speech than Brandenburg. Moreover, the scope of Brandenburg is with regard to punishment in reaction to speech made and the course of action I indicated is preemptive, thus not at all a punishment [1], and purposed upon avoiding "clear and present danger" [2] presented by the specific hate speech that would be expected to happen at white supremacist and Antifa attended public protests/events. It may be that individuals refer to the denial of a permit as a "punishment," but the law does not construe that as a punishment. It sees it as a proscription. Also, Brandenburg pertains to codes of law and regulations, not to the exercising of professional judgment, which, were I the permit issuer, is what I'd be doing in deciding to issue or withhold permits.
I believe I'd be fully justified in acting preemptively for in the wake of the Charlottesville events, we observe that Heather Heyer was killed and several others injured. As established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. One may not like the "clear and present danger" test, but the fact is that it currently stands.
Let me explain the legal theory and case law that informs my arrival at the conclusion/decision above...For this post, the "main" post content provides the jurisprudential framework upon which my conclusion is based. Readers will find my application of the framework's concepts in the "Notes" section of the post. (If one doesn't read the notes in conjunction with the "main" post, one won't know and cannot understand what legal argument I've presented to justify my decision to withhold permits.)
There are two aspects of free speech (expression): affirmative and negative. The SCOTUS has recognized principles and doctrines from both aspects. The aspect that I'd used as the basis for denying a permit is, of course, the negative aspect. The two notions are well explained in Rodney Smolla's "Academic Freedom, Hate Speech, and the Idea of a University." (It's a typical length paper -- ~35 pages) Relevant excerpts are given below:
To "get it," one must understand the general framework of how freedom of speech "works" in jurisprudential consideration.
Affirmative Model of Free Speech Jurisprudence:
The "affirmative" side of first amendment jurisprudence approaches free speech issues by emphasizing a group of interrelated doctrines that have combined, in modern times, to create a constitutional jurisprudence highly protective of freedom of speech. The affirmative side begins with the mindset that speech is presumptively protected against any restraint or punishment, and regards any encroachment with intense skepticism. [3] Affirmative thinkers are unlikely to rest the justification for freedom of speech on any one theory, but instead point to a cluster of rationales for treating freedom of speech as a specially preferred social value. Most importantly, the affirmative side of first amendment jurisprudence emphasizes both the social value of free speech to the collective good and the private value of free speech to the individual. [4]
As a collective value, freedom of speech serves the general social interest in the pursuit of truth through the "marketplace of ideas. " Free speech also serves as a check on tyranny, and is the lifeblood of democratic self-governance. These collective theories justify free speech as a means to an end. But free speech is also an end in itself, an end intimately intertwined with human autonomy and dignity . Free speech is thus especially valuable for reasons that have nothing to do with the collective search for truth or the processes of self-government, or for any other conceptualization of the common good. 11 It is a right to speak one's mind defiantly, robustly, and irreverently, just because it is one's mind.'
Negative Model of Free Speech Jurisprudence:
The negative side begins with the proposition that the first amendment is not an absolute and that many recognized doctrines exist that permit speech to be regulated or punished. When presented with a problem such as hate speech, the negative first amendment thinker says: "Here are social policy values of enormous magnitude-equality, tolerance, and respect for human dignity-values that are, no less than free speech, of constitutional dimension. Let us employ every conceivable exception to protection for free expression that is currently recognized, so that hate speech can be deterred and these laudable values vindicated."
The negative first amendment thinker accepts freedom of speech as an important constitutional value, but, when matters such as hate speech are at issue, tends to look for ways to stretch the loopholes. The negative thinker will tend to punch holes in the many classic rationales that have been advanced to support expansive protection of freedom of speech. The poetic power of the marketplace image, it is pointed out, is tempered by experience. Grounding freedom of speech in individual fulfillment, it is argued, is inappropriate, for then freedom of speech becomes indistinguishable from any other human desire, losing any claim to unique shelter from interference by the state. Significantly, the negative free speech thinker is likely to single out one narrow rationale for elevating protection of free expression -- the significance of freedom of speech to the process of self-governance -- thus treating political speech as the only genre of expression meriting heightened protection.
How the SCOTUS Reconciles the two models:
The affirmative side of free speech thinking has, in recent history, more often triumphed over the negative. The SCOTUS has tended to accept the affirmative argument that freedom of speech is a preferred value supported by multiple rationales, extending generous levels of constitutional protection to a vast range of expression. Despite the marketplace metaphor's frailties, the Court has enthusiastically embraced it. The Court also has acknowledged that the first amendment "serves not only the needs of the polity but also those of the human spirit-a spirit that demands self-expression."
Affirmative principles that protect certain hate speech:
- Neutrality -- Mere opposition to an idea is never enough, standing alone, to justify the abridgment of speech. All ideas are created equal in the eyes of the first amendment-even those ideas that are universally condemned and run counter to constitutional principle
- Emotion -- Speech does not forfeit the protection that it would otherwise enjoy merely because it is laced with passion or vulgarity.
- Symbolism -- "Speech" is construed to include non-verbal expression, including demonstrations/protests and imagery.
- Harm -- While the neutrality principle forbids penalizing speech merely because of opposition to its content, modern first amendment jurisprudence does permit speech to be penalized when it causes harm. The harm principle defines the types of injuries that will qualify as harms sufficient to justify regulation of speech. [2]
- Causation -- The integrity of the neutrality, emotion, and harm principles is dependent upon the adoption of a rigorous causation rule that requires a close causal nexus between speech and harm before penalizing speech. [5] The modern "clear and present danger" test [established in Brandenburg] is the most famous articulation of the currently prevailing causation rule. Advocacy of force or criminal activity may not be enough unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." [This is required because] Virtually any opinion might, at some indeterminate future time, "cause" physical harm. [5]
- Precision -- A proscriptive regulation must meet two precision requirements (See also Smolla notes 34, 35, 54-58 and the corresponding text giving rise to those notes):
- Substantive --> The regulation implicating speech be precisely designed to effectuate the governmental interest at stake. [6]
- Definitional --> The terms used to identify proscribed speech be defined with a meticulous exactitude well beyond that of other routine legislation, so that speakers know in advance what speech is and is not permitted, thereby avoiding the self-censorship caused by uncertainty. [6]
Modern first amendment jurisprudence does permit expression to be penalized in a number of circumstances applicable to hate speech. The circumstances by which hate speech can be proscribed are:
- The Two-Class Theory -- The Court continues to treat "obscene" speech as not within the protection of the first amendment at all. Chaplinsky v. New Hampshire established that, in terms of content, only obscene speech can be proscribed under "two-class" theory.
- The Fighting Words Doctrine -- While Chaplinksy repudiates "two-class" theory for all but obscene speech, the "fighting words" doctrine remains valid so long as the proscription meets the "clear and present danger" test. Thus a verbal attack directed at a particular individual in a face-to-face confrontation that presents a clear and present danger of a violent physical reaction may be penalized. [7] A statute aimed at hate speech that only penalizes such "fighting words" confrontations, and that is applied to require a governmental showing of imminent danger in every individual case, would be constitutional.
- Content-Neutral Protection of Persons or Property -- The clear and present danger test permits speech to be penalized when it is on the brink of erupting into violence against persons or property. Once physical injury to persons or property has taken place, criminal and tort rules of general application may be brought to bear upon the wrongdoer, and it is no defense that the persons were injured or the property destroyed in the cause of free expression. There is no first amendment right to commit physical assault or damage another's property. Under the principles established in United States v. O'Brien, when the government promulgates a rule for reasons unrelated to the content of expression, and the governmental interests at stake are substantial, the regulation will normally be upheld even though it may have the incidental effect of interfering with speech. [8]
- Discriminatory Conduct -- Just as the first amendment does not immunize physical attacks on persons or property, it does not immunize discriminatory conduct illegal under the equal protection clause, civil rights acts, or labor laws. As long as it is the underlying discriminatory behavior and not the speech that is being regulated, the first amendment is not offended. Under the analysis in O'Brien, the penalty exacted on speech in such cases is incidental to the governmental purpose of regulating the purely non-expressive component of the conduct. [9]
- The Theory of Hate Speech as a Relational Harm. -- [This aspect has nothing to do with my aims, so I'm not providing a brief description for it. (See the taxonomy of harms in Note 2.)]
- The Public Speech/Private Speech Dichotomy -- [This too doesn't apply to the situation and my proposed action.]
Notes:
- See Chaplinsky v. New Hampshire. In that case, the Court explicitly recognizes discretely prevention and punishment.
"There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
- Brandenburg essentially established the use of the "clear and present danger" test in determining whether and what speech could be interdicted or punished. The dangers themselves must fall into either or both of Category I or Category II (see below) harms from among those recognized as tortious or criminal in U.S. law (the injuries and acts that precipitate them are not, in law, construed as being mutually exclusive; for instance a Category I act/harm can often create Category II and/or III harms); harm that is solely a Category III harm is insufficient for preempting or punishing speech.
Obviously, the category of harm I'd aim to prevent is Category I.
(For convenience, the classes of harms recognized in U.S. law are below summarized. Some readers may care for vastly more summarized explication of the notion of "harm" than is found at the preceding links. For them, I suggest the following: Theories of Criminal Law or Freedom of Speech)- Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
- Category I -- Physical Harms.
- Injuries to persons -- Examples:
- Solicitation of murder
- Incitement to riot on behalf of the speaker's cause
- Reactive violence against a speaker in response to their message
- Injuries to property -- Examples:
- Solicitation of arson
- Incitement to destroy property
- Reactive violence against the property of the speaker in response to the message
- Injuries to persons -- Examples:
- Category II -- Relational Harms -- Some of these may occur, but I don't think one, I, can reasonably anticipate that they would merely as a result of a public protest or other socio-political gathering of the sort here under discussion and the accompanying expressions made there.
- Injuries to social relationahips
- Injuries to transactions or business relationships
- Injuries to information ownership interests
- Injuries to interests in confidentiality
- Category III -- Reactive Harms
- Injuries to individual emotional tranquility -- Roughly speaking, this amounts to one's getting their feelings hurt or suffering embarrassment
- Injuries to communal sensibilities -- Roughly speaking, this amounts to one's being aghast at something expressed as some people claimed to be when Janet Jackson had a "wardrobe malfunction."
- Category I -- Physical Harms.
- Taxonomy of Harms (Examples provided for harm classes relevant to the types of harm I, in opting to deny a permit, foresee as "clear and present" harms I reasonably expect to result were I instead to issue the permit and the applicants to assemble and express themselves. From a reactive standpoint, punishment, the ones I anticipate need not be the ones that indeed resulted.)
- Once again, positive and negative liberty rear their heads.
- One can get a sense of what Emerson covers in his book (I linked it, but I can't find a free version of it) in his paper "Toward a General Theory of the First Amendment."
- "Penalise" and "indeterminate" -- Observe that:
- The temporal context and focus is penalizing not proscribing/preempting hate speech. Penalizing anything is necessarily reactive, not proactive. Penalty requires an operative and extant actus rea wherefore courts can penalize its actor.
- The temporal context for determining whether the harm be "present" cannot be indeterminate. It need not be a precise hour and minute. In the matters of protests, having a timeframe reasonably proximate to the event itself -- in the setup of the event, during the event, in the dismantling of the event -- is sufficiently specific for this test.
That harm may occur days or weeks prior to or following the noted periods is not sufficient. I would not be justified in denying a permit because I think some "nut job" may, the day before the event, say, riot in the streets or "raid" the hotel where many (counter-) protesters are bivouacked.
- SCOTUS asserted in Sable Communications of California, Inc. v FCC that government may only "regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Also, U.S. v O'Brien established that "when government regulation is 'unrelated to the suppression of free expression,' the "incidental restriction on alleged First Amendment freedoms" must be "no greater than is essential to the furtherance of that interest."
In denying the permit, I have no aim to regulate the content of the speech (definitional aspect) that might be presented. My reason for denying the permit is "unrelated to the suppression of free expression" in that I find that the town of C-ville hasn't the resources to manage the event and ensure the safety of the attendees. My reason for denying the permit is to prevent the "clear and present" risk of physical harm from materializing into reality (substantive aspect). Given my motives, the precision principle's substance provision applies and the definitional one does not. Anticipating and preventing harm such as that which happened to Heather Heyer is valid, given the C-ville resource paucity, as a basis for denying the permit.
It's probably worth noting that whereas I'd not have issued the permit, C-ville opted to issue a permit and then revoke it. Ms. Heyer would be alive were they to have anticipated the violence and denied the permit, but it's too late for that now. As for on what basis one might foresee the violence, well, I'll leave it to you and other readers to search the Internet for examples of the violence that results when white supremacists march and/or host public demonstrations, rallies and protests. For my part, I'll note that just as C. Cantwell was able to anticipate the harm, so can I, the difference being that as the issuer of the permit, I'd have been in a position to avert it rather than inspire or commit it. - Notice that again that the scope is with regard to a regulation or statue, something that applies "universally" within a jurisdiction, not the discrete and expedient exercise of professional judgment.
- This provision must be applied evenly. It is in recognition of that requirement that I wrote what I did about also denying permits to the Antifa.
- Here again I repeat, I would deny the permit due to the risk of violence erupting as a result of the speech, not to proscribe the speech itself.
Aside:
I guess people, you, WillHaftawaite, think I just post "sh*t" becuase it happens across my mind. Trust me. On the occasions that I do that, I'll, along with whatever idea I share, volunteer that I have remarked off the top of my head and without confirmation of the idea(s) I share.
I absolutely thought about and confirmed the plausible and probable legal validity my remarks on "permit denial" before I posted them. I might have missed something, but this isn't it. It arrive at my conclusion merely because I don't like white supremacists. As much as I "bitch and moan" about others not researching/confirming what they believe be so prior to posting their beliefs, you had to know that I did do so. FWIW, on the free speech topic, the research was done ages and ages ago; all I really had to do was "dig it up" and quickly review it.
Lastly, several folks have griped about the length of my posts. The ones that are long when I conceive them are the ones that I have a sense that a notable share of readers here may not be deeply familiar with the topic or aspect of it I've chosen to discuss. Others, like this one, are long because I initially posted something short and someone responded to it with remarks that bid to explain/justify the rational basis giving rise to the initial brief post. As goes the current topic, I thought, given how often the free speech topic appears on USMB and in "real life," "everyone" here is very well/deeply versed on the legal theory, case law, and applications of free speech principles and so on. Clearly, I was mistaken.
By the same token, I don't think the other member's tacit request that I explain myself was out of line or rudely made, so I don't mind, in such instances, doing so. I'd thought about it before I posted the "short comments," so it's not bother to share those thoughts.
