Pat Robertson was within his First Amendment rights

[Jack Rabbit]

EDITED to fix tag

Cross posted from a thread on another discussion board . . .

1. Robertson was within his First Amendment rights. He urged the US government to take action against a foreign power by removing its head of state by way of assassination. I think the idea is nuts, but when one supports free speech, one must stand up for another's right to say things that are unpopular, disagreeable and even absurd.

2. Since Robertson urged action by the government, this is not the equivalent of shouting "Fire!" in a crowded theater. That analogy comes from Justice Holmes opinion in Shenck v. United States (1919):

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done . . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force . . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

Had Dr. Robertson said something like he was going to organize an attempt to overthrow the government of Venezuela through the 700 Club, then we might be in a situation more analogous to shouting "Fire!" in a crowded theater. We cannot permit private parties to make their own foreign policy, but there is nothing wrong with private individuals urging the government to adopt a particular policy.

3. As a gloss on Schenck, I recommend reading Justice Douglas' concurring opinion in Brandenburg v. Ohio (1969):

The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during World War I--a war "declared" by the Congress, not by the Chief Executive. The case was Schenck v. United States, 249 U.S. 47, 52, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort . . . .

Out of the "clear and present danger" test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States, 354 U.S. 298, 318. But an "active" member, who has a guilty knowledge and intent of the aim to overthrow the Government <454> by violence . . . may be prosecuted . . . . And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness . . . . And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts . . . .

When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.

Action is often a method of expression, and within the protection of the First Amendment.

Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted?

Suppose one rips his own Bible to shreds to celebrate his departure from one "faith" and his embrace of atheism. May he be indicted?

. . . One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an "active" Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty security hearings which, since 1947, when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action . . . . They are indeed inseparable, and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas, as in Yates, and advocacy of political action, as in Scales. The quality of advocacy turns on the depth of the conviction, and government has no power to invade that sanctuary of belief and conscience.

[bryant69]

1. Yes he was within his first ammendment rights

That doesn't mean that it wasn't a terribly stupid and immoral thing to say. You might also note that the First Ammendment does not apply to Venezuela - if by their rights he made a death threat, they have every right to seek extradition.

Bryant
Check it out --> http://politicalcomment.blogspot.com

[Jack Rabbit]

6. I wouldn't honor an extradition request

On the other hand, if I were Robertson, I wouldn't be planning any vacations in Venezuela.

[hobbit709]

2. True, but

the arrant hypocrisy of an "alleged" man of the cloth calling for assanination is what upset most people.

[opihimoimoi]

3. Ole squinty eyes revealed once more his assholeness for all the world

to see....Fuck him and those who follow the dude...

[OrlandoGator]

4. He can say whatever he wants.

But he shouldn't act all incredulous for rightfully calling him a "radical cleric" when he does.

[ovidsen]

5. Correct.

I have my own personal definition of Free Speech. "The First Amendment gives every American citizen the right to use the spoken or written word to make a complete jackass out of himself or herself."

And this is what the High Holy and Most Reverend Pat Robertson has done most effectively. If I were Pat, I wouldn't worry about being arrested. I'd be more worried about some nutcase trying to take me out because of what I said, but hey! That's not my problem.

[zbdent]

7. Please explain that to

The guy in the bar who joked about a "burning bush"

The Dixie Chicks

Bruce Springsteen

Cindy Sheehan

The Clear Channel DJs who were "released" because their ratings were up . . .

[Jack Rabbit]

8. That's not the same thing at all

The guy in the bar who joked about a "burning bush"

I agree that this fellow should not have gotten in hot water; his remark was clearly hyperbole. However, let's say he meant it in earnest. You can't threaten the life of a public official, even a court appointed chief executive who stole an election. It's quite different from suggesting that we go to war against Venezuela by having the government assassinate that country's head of state.

The Dixie Chicks . . . Bruce Springsteen . . . Cindy Sheehan

None of these people are being charged with a crime. In the first two cases, they were subjected to boycotts by private parties. In the last case, there has been a smear campaign in which the White House may have a hand, but it largely carried out by private individuals with private funds.

If we catch the White House misappropriating public money to pay Michelle Malkin or Bill O'Reilly to call Mrs. Sheehan a traitor, then we have a right to raise a stink. Given the past history of this White House, that's not as far fetched as it ought to be.

The Clear Channel DJs who were "released" because their ratings were up . . .

I agree that Clear Channel acted inappropriately, but this is an example of corporate tyranny. The Constitution prohibits Congress from making any law abridging the freedom of speech; it doesn't say anything about Clear Channel.

[Qibing Zero]

9. Too bad he wasn't within his 'patriot act rights'

But we all know how much of a double standard the bullshit law itself is anyhow.

[Wizard777]

11. That Security Patch needs to go. The Republicans have given up

on the Constitution. They won't even try to understand it any more. They have long surrendered to Fascism. Now they regularly show up with Patches like The Contract With America and Patriot Act to cover their Constitutional Ignorances. Why even try! The US Constitution will not allow Corporations to rule America. So it has to go! So hey, how about A Patriots Security Contract With America? We could just do away with the Pentagon. Then the corporation could just attack any country that will not give them blank checks. Including America. That ought to go over real big at the RNC.

[shadowknows69]

10. I thought inciting people to violence was illegal

and that's exactly what robertsons words were intended to do.

[1932]

12. He wasn't just urging action by the government.

I don't have the quote, but if memory serves, he was encouraging a black ops operation.

And I think John Dean's article was much more persuasive on the legal issues.

I also think a court of law would be a great place to work out these arguments no matter how you feel about who should win.

[1932]

13. Attorney John Dean's persuasive legal argument:

From the moment I heard Robertson's remark, on the radio, I thought of the federal criminal statutes prohibiting such threats. Do they apply?

For me, the answer is yes. Indeed, had these comments been made by a Dan Rather, a Bill Moyers, or Jesse Jackson, it is not difficult to imagine some conservative prosecutor taking a passing look at these laws - as, say, Pat Robertson might read them -- and saying, "Let's prosecute."

The Broad Federal "Threat Attempt" Prohibition Vis-à-vis Foreign Leaders

Examine first, if you will, the broad prohibition against threatening or intimidating foreign officials, which is a misdemeanor offense. This is found in Title 18 of the United States Code, Section 112(b), which states: "Whoever willfully -- (1) … threatens … a foreign official …,

(2) attempts to… threaten … a foreign official … shall be fined under this titled or imprisoned not more than six months, or both."

The text of this misdemeanor statute plainly applies: No one can doubt that Robertson "attempted" to threaten President Chavez.

http://www.venezuelanalysis.com/articles.php?artno=1536