Inevitably it takes just a few minutes of debating free speech when some interloper will interject that there have to be limits on speech because, “You can’t, after all, yell ‘Fire’ in a crowded theater.” The Associated Press has a report about two people caught up by that sort of thinking and arrested simply because their speech was considered to incendiary to be tolerated.
To be sure, the men involved in these cases said things that the average person is likely to find reprehensible. Reggie Upshaw was charged with disorderly conduct and inciting a riot when he went to Times Square a few days after the Sept. 11 attack saying, among other things,
It’s good that the World Trade Center was bombed. More cops and firemen should have died. More bombs should have been dropped and more people should have been killed.
Police reported that a crowd had gathered around Upshaw and some in that crowd made threats against his life.
William Harvey, meanwhile, was arrested on October 4 near the ruins of the World Trade Center dressed in military fatigues and holding a sign featuring Osama bin Laden. Harvey told a crowd of about 60 who gathered that the terrorist attacks were revenge on the United States for the way it treats Muslim countries.
Now in both cases, police are certainly correct that allowing the speech to continue could have caused a riot or other public disturbance, and were wise given the circumstances to take these gentlemen into custody if only for their own protection.
But should they then be charged and prosecuted for trying to incite a riot? Judges separately in each case have ruled that their words are not subject to the First Amendment protection since they knew or should have known that their speech would be likely to incite a riot.
First Amendment lawyer Floyd Abrams, on the other hand, told the AP that the two men’s statements were,
. . . political advocacy, detestable to almost all of us, but protected nonetheless. . . . I find disturbing the notion that people can be jailed for reasons that bear on the content of what they are saying.
I concur. Prosecuting these two nitwits seems unlikely to serve much purpose.
Source:
Judges Rule Against 2 Accused of Praising Sept. 11 Attacks. Associated Press, March 30, 2002.