Supreme Court Justice John Paul Stevens is retiring. Though a liberal, even Stevens would not agree with what the Left are doing today, demonizing conservative speech on the Internet (see the Anti-Defamation League’s malevolent report), talk radio, and TEA Party rallies (which police have described as remarkably peaceful) as incitement to political violence and terrorism.
In his April 26th article for American Thinker, Mark J. Fitzgibbons reminds us what Justice Stevens had written on the importance of distinguishing between protest — constitutionally protected free speech — and incitement to violence.
Fitzgibbons began by noting that “Many liberals are making loaded, unsubstantiated claims that talk radio, the internet, peaceful Tea Party protests, and other conservative speech and associations run the risk of inciting violence. Indeed, in the past it was liberals who not merely came to the defense of such forms of protest, but who articulated the actual danger of suppressing such protest.”
Then Fitzgibbons points out that in 2007, retiring Justice John Paul Stevens whom the Left are now praising, had written a dissent in Morse v. Frederick, which was joined by Justices Souter and Ginsburg. Steven’s dissent helps delineate what constitutes controversial, even patriotic, speech and protest from actual incitement of unlawful conduct. Here are excerpts from Justice Stevens’ opinion:
The beliefs of third parties, reasonable or otherwise, have never dictated which messages amount to proscribable advocacy. Indeed, it would be a strange constitutional doctrine that would…would permit a listener’s perceptions to determine which speech deserved constitutional protection.
Such a peculiar doctrine is alien to our case law. In Abrams v. United States, this Court affirmed the conviction of a group of Russian “rebels, revolutionaries, [and] anarchists,” on the ground that the leaflets they distributed were thought to “incite, provoke, and encourage resistance to the United States.” Yet Justice Holmes’ dissent — which has emphatically carried the day — never inquired into the reasonableness of the United States’ judgment that the leaflets would likely undermine the war effort. The dissent instead ridiculed that judgment: “nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.” In Thomas v. Collins, we overturned the conviction of a union organizer who violated a restraining order forbidding him from exhorting workers. In so doing, we held that the distinction between advocacy and incitement could not depend on how one of the those workers might have understood the organizer’s speech. That would “pu[t] the speaker in these circumstances wholly at the mercy of the varied understanding of his hearers and consequently of whatever inference may be drawn as to his intent and meaning.”
The Vietnam War is remembered today as an unpopular war. During its early stages, however…the dominant opinion strongly supported the prosecution of several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago, see United States v. Dellinger, and the villification of vocal opponents of the war like Julian Bond. In 1965, when the Des Moines students wore their armbands, the school district’s fear that they might “start an argument or cause a disturbance” was well founded. Given that context, there is special force to the Court’s insistence that “our Constitution says we must take that risk; and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively, often disputatious, society.”
Well said and well reasoned, Justice Stevens. Now, if only your fellow travellers on the Left, such as the Anti-Defamation League whose report recommends “a major law enforcement operation” against Obama critics, read what you had written!