Free Speech Depends on Who is Doing the Talking…and (Sometimes) the Listening.
In April 1940, on “a busy Saturday afternoon” in Rochester, New Hampshire, Walter Chaplinsky, a Jehovah’s Witness, was passing out leaflets on a public street while denouncing other religions as “a racket.” A large crowd gathered, stopping traffic, and a “commotion” ensued. Chaplinsky was removed by a local marshal, who Chaplinsky called a “racketeer” and a “damned Fascist.” Only then was he charged with violating a New Hampshire law which stated that “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name.”
Chaplinsky was convicted and his appeal on free-speech grounds eventually made it to the Supreme Court. On its face, since Chaplinsky did not actively try to incite violence, he would have seemed within his First Amendment rights, with the New Hampshire law excessively restrictive.
The Court did not see it that way. In a 9-0 decision, the justices, including civil libertarians Hugo Black, William O. Douglas, and Frank Murphy, ruled that Chaplinsky’s conviction should stand, because the First Amendment does not protect what Murphy termed “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words—those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”
Although Chaplinsky’s exclamations did not rise to Oliver Wendell Holmes’s free speech qualification in Schenck v. United States of “falsely shouting fire in a theatre and causing a panic,” Chaplinsky did further the notion that a speaker is responsible for the impact of his or her words on those in earshot.
In recent years, that standard of responsibility has been weakened considerably.
In 2015, for example, the Court voided the conviction of Anthony Elonis, who had been charged with posting online threats against his ex-wife, children, sundry others, and the FBI in rap lyrics posted under a pseudonym. Elonis claimed his threats were not meant to be taken literally. The justices agreed. “The Court held that the prosecution needed to show that Elonis intended the posts to be threats, and therefore that there was a subjective intent to threaten.”
This past June, in Counterman v Colorado, a 7-2 Court, with all liberals in the majority, ruled that Billy Counterman, who, over a period of two years, had posted hundreds of attacks on Facebook aimed at a local female singer-songwriter and was convicted under an anti-stalking statute for causing “serious emotional distress,” was also within his free speech rights.
The emotional distress was well-earned. The woman “tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contact. Several of his messages envisaged violent harm befalling her. Counterman’s messages put her in fear and upended her daily existence: She stopped walking alone, declined social engagements, and canceled some of her performances.”
This case had the additional wrinkle that Counterman had been diagnosed with mental illness and therefore claimed to be unable to appreciate that his posts, which including wishing his target dead, represented a “true threat.”
Elena Kagan, writing for the majority, concluded that Colorado was required to demonstrate “that a reasonable person would understand his statements as threats.” Since Counterman evidently did not meet the definition of a “reasonable person,” he was free to terrify the woman to whom he had aimed the posts.
Like Chaplinsky, Elonis and Counterman seem to be decisions of their time. It is hard to imagine that before social media, if a man had sent a woman a series of letters or postcards wishing her dead, that a free-speech defense would have gotten him anything but increased legal fees. But the Court has now taken the position that it is not enough for a listener to feel threatened by either specific or symbolic speech but that the speaker must be proven to have intended it as such. How even a reasonable listener interprets the speech matters not at all.
The standard is hardly absolute, however. Supreme Court justices are a bit more squeamish when the threats are directed against them or other government officials. Had Elonis or Counterman aimed those posts at John Roberts, he would be sitting in a jail cell or confined to a mental health facility.
All of this of course leads directly to the most recent indictment of former president Donald Trump on the charge of attempting to overturn the results of the 2020 presidential election.
Although the Court has significantly loosened the boundaries of unprotected speech, it has not eliminated them. Holmes’s theater analogy presupposes that speech will lead to action and speech that can be shown to fall in that category is not protected. The prosecutors, fully aware of their more demanding burden of proof, seem to have amassed a good bit of evidence that Trump’s “speech” was indeed intended to be translated into action, although Trump’s lawyers will furiously contest it.
Given the broad limits the Court has established, the Trump legal team would seem to have a relatively clear path to victory.
But there is one further factor that will likely play into how the case is ultimately decided.
It matters who the speaker is.
If a janitor were sufficiently foolhardy to have threatened John Gotti, he or she would be guilty of nothing more than terminal stupidity. If, on the other hand, John Gotti threatened a janitor, the likelihood of speech resulting in action increases quite significantly.
Donald Trump, for all his protestations of innocence, is not a figurative janitor like Billy Counterman or Ted Elonis, powerless to demand others follow his dictates, but rather a John Gotti. Extending the metaphor, if the janitor turned up dead after Gotti’s threat and his minions were found to have committed the murder, Gotti would most surely be tried and likely convicted of conspiracy to commit murder, even without any direct communication between him and the actual killer introduced into evidence. In this case, how the listeners interpreted the speech would matter a great deal.
Like the dead janitor, Trump’s speech did result in action, and there seems ample evidence that his minions interpreted that speech as demanding it. Trump’s lawyers will be hard-pressed to pass off these results as coincidence.
Trump has aspired to be a mob boss since the day he took office. Here’s his chance to be treated like one.