George,

I respectfully disagree with David Repass's certainty that the recent printings of caricatures of the Prophet Mohammed would not be protected "speech" under the First Amendment. By that I mean that while it is not impossible to conceive of circumstances under which the Court might find that publication of the caricatures is not protected, those circumstances are highly circumscribed by law and almost certainly would not exist in the case of a newspaper in the United States printing the caricatures. The "clear and present danger" standard was first articulated by the U.S. Supreme Court in a case in 1917. The parameters of that standard have evolved and become more defined by subsequent decisions of the Court. Today, the risk that speech might incite unlawful behavior is but one part of the standard; the speech must also be directed to inciting or producing imminent lawless action. In other words, in addition to the likelihood that the speech will cause a lawless response, the speaker must intend to cause such a response.

While one could certainly make the case that printing the caricature is an insensitive and irresponsible act on the part of a newspaper, it would be far more difficult to prove that the newspaper published the caricatures with the goal of causing a riot.

Josh Wheeler (electronic mail. February 8, 2006)