Let's Not Confuse 'Clear and Present Danger' With Free Speech

Watching the New York Police Department storm Hamilton Hall on the Columbia University campus must have prompted many parents of students there to marvel at the vast range of interdisciplinary activities offered by that institution.

Not only do students at Columbia University get a first-rate education in all sorts of stuff but they are also apparently encouraged to “think outside the box” so that they can do things like build tightly-packed tent cities on the college green that can obstruct the passage of even the most determined power walkers.

As a former law student who attended Columbia University during the Bronze Age, I can only marvel at the extent to which today’s students are inculcated during their college years with an overwhelming sense of privilege and self-entitlement that will undoubtedly help to propel them to astounding heights in the corporate world before their wax wings melt and they plummet back to earth.

The fact that the administrators at Columbia University permitted the students to occupy the campus for several weeks before finally authorizing the NYPD to come in and clear the lawn of the rabble-rousers has been criticized by many as being too little and too late.

Certainly the entire tent encampment could have been cleared out in about 10 minutes with the judicious use of several bulldozers. However, university administrators typically prefer to engage in laborious and often pointless negotiations with protesters to show that they are trying to resolve the situation peacefully.

Unfortunately, many of these protesters view agreements to negotiate as a sign of weakness and are thus encouraged to make additional demands for such things as pillows, vegan treats, fresh coffee and the total divestment of any university interests in Israeli companies.

There is the added bonus that dragged out negotiations will continue to capture the attention of the nation’s news media — which apparently can find no other stories of interest to cover anywhere else in the country.

The eruption of noisy and sometimes violent protests on the nation’s campuses in the past few weeks coupled with the arrests of more than 2,200 persons at more than 40 different locations, as reported by CNN, has reignited the ongoing debate over the limits of free speech.

What sorts of speech are protected and how do we value the rights of protesters to say things that many of us find troubling or even despicable?

The U.S. Supreme Court has grappled with how to weigh the interests of unfettered speech against the need to protect the public safety.

In Chaplinksy v. New Hampshire (1942), for example, the Court held that speech which constitutes “fighting words” is unprotected by the First Amendment. However, the Court pointed out that such speech would have to be so provocative as to pose an imminent threat of inciting a breach of the peace such that a reasonable person would respond to it in a violent manner.

However, an extraordinarily sensitive person who took umbrage with even the slightest insult such as being called a “poo-poo head” would probably not be successful in a lawsuit against the speaker because most people would find such a characterization to be almost comical.

Contrast the “poo-poo head” insult with the appalling statements by some of these protestors who have called for Jews to be gassed and burned alive — horrific words that would clearly run afoul of the “fighting words” doctrine.

Closely related to the “fighting words” concept is that of “incitement” which was described in Schenck v. United States (1919) by Justice Oliver Wendell Holmes Jr., as when “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.”

Subsequent cases before the Court such as Brandenburg v. Ohio (1969) resulted in a narrower definition of incitement to limit it to those situations which involve expressions of “an immediate, or imminent intent, to do violence.”

The Brandenburg holding made it clear that mere advocacy of violence in a speech without any overt actions evidencing the intent or means to carry out such violence will probably be protected by the First Amendment even though these generalized rants are offensive to their stated victims.

Even the chant, “From the river to the sea, Palestine will be free,” which is a call for the end of the Jewish nation, would probably be protected speech since it could be characterized as a general political statement as opposed to an immediate threat of violence.

Far easier are the situations in which protesters have (1) refused to leave the campus in defiance of an order from university officials or (2) vandalized buildings on campus (such as the aforementioned Hamilton Hall) or (3) threatened other individuals with violence or (4) actually carried out other unlawful acts such as kidnapping university employees (which happened to two janitors at Columbia University).

In these cases, there is no need to analyze the sometimes hazy differences between protected and unprotected speech because the offenders can be prosecuted for committing more traditional offenses such as trespassing, vandalism, assault and kidnapping.

Unfortunately, many of the campuses racked by these disturbances are located in cities with district attorneys who may have very little interest in seeing that the appropriate penalties for these crimes are meted out.