George:

I have a hard time trying to figure out the First Amendment issues, or at least the political/philosophical issues, behind the controversy over the Danish publication of the cartoons that some Muslims find offensive. David RePass muddies the waters in his recent post to you in which he argues that the cartoons are not "protected speech," apparently because he believes that they constitue a "clear and present danger" of inciting violence. He apparently likens printing the cartoons to "falsely shouting fire in a crowded theater."

First, a bit of history. The quotation that David uses is from Schenck v. United States, a 1919 case in which Socialists had, during World War I, passed out fliers that called for people to protest against the draft. The Court in essence said, "They may have just been urging political protest, and they didn't actually come out and urge civil disobedience, but we think we knew what they meant." The Court then said that although such speech may be permissible in peacetime, it is not in wartime. Schenck's flier would be permissible under present Supreme Court interpretation of the First Amendment (as has been pretty clear ever since the Court's decision in Cohen v. California, a 1971 case dealing with a protester who wore a jacket that said "F*&# the Draft.").

Second, what kind of speech might constitute a "clear and present danger?" It is clear under present Supreme Court case law that it is NOT sufficient that the speech in question might make someone mad. It is not even sufficient that it might make someone mad enough to riot, as has been clear since at least the 1977 decision in National Socialist Party v. Skokie (allowing the Nazi Party to march through the City of Skokie, a place where many Holocaust survivors lived). The Supreme Court in that case held that if the actions of the Nazi Party were outrageous and would cause the citizens of Skokie to riot, the answer is to restrain the citizens of Skokie. This is entirely consistent with the basic philosophy of the First Amendment, best expressed by John Stuart Mill when he wrote that the cure for bad speech is not no speech -- it is more speech. You don't refuse to allow a particular viewpoint to be heard; you refute it.

The only kinds of speech that have ever been declared to be not protected are pornography and "fighting words" -- speech so offensive that it would provoke a reasonable person to violence right then and there. Courts have held that only face-to-face conversations can be "fighting words" -- not publications, or even telephone calls.

The crucial distinction comes down to whether an utterance is "speech" or whether it is "conduct." Although the cases that try to draw the distinction sometimes seem to be silly in their hair-splitting, one way to think about it is to ask whether there is any political, philosophical, or any other kind of secondary meaning to what is being said. Shouting "Fire" in a crowded theater does not have any secondary meaning; you would not say that someone who shouts fire is doing so to express his contempt for the movie being shown, or his displeasure with the war in Iraq. Such an action is "conduct" rather than protected speech. On the other hand, wearing a jacket that says "F*&# the Draft" clearly has a secondary meaning,. For one thing, taken literally, it would be urging that a sexual act be performed on a governmental institution. It cannot be taken literally. Clearly its only real purpose is to express contempt for the Vietnam War, and for the governmental institutions that made it possible. Such an action is "speech."

I have only seen one of the cartoons, but I have heard enough descriptions of them so that I think I can say that they as a group all have clearly secondary meanings. The cartoon that has Mohammed wearing an atomic bomb instead of a turban is clearly not meant to be literally an accurate depiction of what someone who passed from this earth more than 1300 years ago would look like. Its secondary meaning is to comment on the fear that many have that Iran will develop an atomic bomb that may then be wielded against Israel, or against anyone else who opposes the religious leaders who run that country. The cartoon that I have seen is rather clumsy, and would be hard to take seriously as a bit of political cartooning, but the First Amendment does not concern itself with quality.

The last point to remember is that the cartoons in question were printed in Denmark in October. Three months later, and 3,000 miles away, people got angry. That would not constitute a "clear and present danger" no matter how it is defined.

- Lloyd Snook (electronic mail, February 13, 2006)