Communication Law Case Study

This case involves the issue of freedom of speech, and the restraints that can legally be placed upon it. Although the First Amendment guarantees the right to free speech, it is appropriate to limit that free speech when what is said could cause harm or injury to others. If someone's speech incites violence against other people, then that person's or group's right to free speech must be taken away in order to protect the public.

Case Background

The events of 9/11 triggered the formation of a teenage terrorist group called the "God Squad," whose main goal was to rally people against all those who are not white fundamentalist Christians. The leader of the group, called "The Captain," holds his meetings on school property, and has the members wear all-black uniforms. They also wear the group's logo, which is a gun and a knife over a cross. They distribute their hate newsletter to the students, and imply that they will wage a war against all blacks, Jews, Islamics, immigrants, and gays.

The school's principal responds to the potential threat of violence by banning the God Squad from all their activities while on school grounds. It is explicitly stated that they are to hold no meetings on school property, nor are they allowed to wear their uniforms or distribute their newsletter.

The God Squad holds a rally on school grounds the very next day, which escalates into a potential violent situation between the students. The principal expels the God Squad students and the police arrive to arrest the members for trespassing, disturbing the peace, and inciting a riot. The local TV crews documented the entire situation for the evening news.

The Captain's father is a conservative-Christian lawyer who files a federal lawsuit, claiming that his son's freedom of speech, freedom of expression, and freedom of assembly rights were all violated.

Case Argument

The right to voice an opinion is a very important civil liberty that cannot be taken lightly, or for granted. The ability to speak one's opinion, even if that opinion is different than everyone else's, is paramount to our sense of freedom and our belief in what it means to live in a free country.

No one would dispute the fact that The Captain and his God Squad had a right to their opinion. No one would even fault them for making that opinion known, even while at school. Their right to their opinion and to express that opinion is a protected right in the United States, and the fact that they may have an unpopular opinion does not make it any less worthy of protection under the First Amendment.

However, most states have passed legislation aimed at limiting that protection under certain circumstances. If someone's speech implies a threat of impending illegal acts, or if there is any proof of that person intending to provoke such acts, then usually the person's free speech rights are not protected under the law. There are other situations where the effects of a speech must be controlled, such as in the case of defamation. Being able to say whatever you want must be tempered with the knowledge of the consequences on those around you of saying what you want. The safety of the public must be taken into consideration when deciding whether or not you are within your legal rights of free speech, as well as the damage to one's reputation that may be caused by someone's speech. There is a scale that has one person's rights balanced against the one whose rights are effected; whose rights outweigh the other's? Whose rights are more important?

Obviously one of the fundamental rights most people would agree on is the right to believe that our children are safe when they are at our public schools. We expect our tax dollars to be used to teach our children in a safe and positive environment, as free from danger as possible in our day and age. We entrust our children to the principal and staff of our schools, and expect them to do what is right to protect them and shield them from danger. One of the obvious issues to consider first, then, is if the content of the group's message in any way breeches the peace or could promote violence - which would compromise our childrens' safety and wellbeing.

From the description of the God Squad, it would appear they are no different than any other type of gang in our modern school system. They have a uniform, and display violent weapons as part of their dress-code, and threaten violence against those different from them. They also bear marked similarity with the Ku Klux Klan, with their meetings and outspoken white supremacist attitude.

Most people would agree that the events of 9/11 were extremely traumatic and the human response to such a type of tragedy is just as varied as humanity itself. However, this tragedy does not give the right for others to invoke additional tragedy upon more human life. The anger and rage felt by the God Squad at the happenings of 9/11 will not be assauged by violence against innocent people, regardless of their belief that they are right in their beliefs to invoke such violence.

By holding public meetings, preaching hate and violence, on school grounds, and distributing their hate newsletters, they are putting our children's safety in jeopardy. Whether or not they are directly inciting violence against their enemies, they are most certainly inciting violence indirectly at least. If they had chosen to hold their meetings privately, off school grounds, and had still been respectful of others who held opinions different than their own, then in all liklihood a problem would not have arisen. By their actions, it is clear that their goal was to incite a public riot and to gather more like-minded members to facilitate their violent goals.

Because of this, the God Squad relinquished their free speech rights. By making continued threats of violence against others, and inciting riots with their meetings on school grounds, their message is not protected under the First Amendment. The principal was within his right to protect the other students and staff by expelling the members of the God Squad and having them arrested when they refused to leave school property. The principal never said the students were not allowed to have their opinion, or even that they couldn't voice that opinion; he simply said they could not do so on school property, which they ignored.

This case should be an easy victory for the Defendents.

Case Law

In SCHENCK v. UNITED STATES, 249 U.S. 47 (1919), Justice Holmes wrote the famous passage, "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." He also said, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." The content of the God Squad's message, overtly threatening "war" against their enemies would most certainly amount to yelling "fire" when delivered on school grounds in front of students.

In DEBS v. UNITED STATES, 249 U.S. 211 (1919), "specific intent" was discussed, regarding a given speech's goal. It is clear in this case that the goal was to recruit more members to facilitate "war" against their enemies, and to propose violence in general against them. In this way, the God Squad's free speech rights are no longer protected.

In ABRAMS ET AL. v. UNITED STATES, 250 U.S. 616 (1919), it said, "Men must be held to have intended, and to be accountable for, the effects which their acts were likely to produce."

In GITLOW v. PEOPLE OF NEW YORK, 268 U.S. 652 (1925), it said, "...the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom."

The Supreme Court showed in NEW YORK TIMES CO. v. SULLIVAN, 376 U.S. 254 (1964), and DUN & BRADSTREET, INC. v. GREENMOSS BUILDERS, INC., 472 U.S. 749 (1985), that the content and subject matter of speech helps to decide the level of protection that it will receive, because speech about public officials or issues of public concern receive more protection than speech about other topics. The God Squad's message content and subject matter centered around hate, so it does not fall into either of the protected categories.

In BRANDENBURG v. OHIO, 395 U.S. 444 (1969), the court narrowed the factors from SCHENCK v. UNITED STATES when it decided that speech can be illegal if it is "directed at inciting or producing imminent lawless action" and if it is "likely to incite or produce such action." In this case, both aspects are met by the content of the God Squad's message.

In HESS v. INDIANA, 414 U.S. 105 (1973), the level of intent is discussed in great detail regarding the "imminent lawless action" statute. In Hess v. INDIANA, the offending speech was voiced to no one in particular and the conviction was still upheld by the Supreme Court. In this current case, The Captain's offending (repeated) speech was delivered to a group of specific individuals and most certainly showed the imminent threat.

In NAACP v. CLAIBORNE HARDWARE CO., 458 U.S. 886 (1982), it was decided that nonviolent activities are entitled to the protection of the First Amendment. Riots or revolutions however, are not.

And in VIVIAN RICE v. THE PALADIN ENTERPRISES, INC., 128 F.3d 233 (1997), it said, "Were the First Amendment to bar or to limit government regulation of such 'speech brigaded with action,' the government would be powerless to protect the public from countless [forms] of even the most pernicious criminal acts and civil wrongs."

Case References

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/clear&pdanger.htm

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/incitement.htm

http://www.prospect.org/print/V11/4/haiman-f.html

http://newsinfo.iu.edu/news/page/normal/1725.html

http://en.wikipedia.org/wiki/Hate_speech

http://supreme.lp.findlaw.com/constitution/amendment01/10.html

http://www.oycf.org/perspectives/11_043001/freedom.htm

http://www.selfregulation.info/iapcoda/rxio-rapporteur-020923.htm

http://www.wcl.american.edu/hrbrief/v3i2/lerner32.htm