Gene Policinski: Speech with a brick behind it: not protected

  The difference between freedom of speech and speech that has no legal protection is no joking matter.

  During and after recent voting on the Obama health-insurance legislation, at least 10 Democrats reported death threats, harassment or vandalism, including bricks thrown through windows recently at district offices.

  A Republican was also targeted. On March 30, authorities charged a Philadelphia man, Norman Leboon, after he posted a video online in which they say he threatened to shoot Rep. Eric Cantor, R-Va., and Cantor’s family. The Washington Post reported that in the profanity-laced video, Leboon calls Cantor "pure evil" and says “Remember, Eric ... our judgment time, the final Yom Kippur has been given. ... You are a liar, you're a pig ... you're an abomination. You receive my bullets in your office, remember they will be placed in your heads. You and your children are Lucifer's abominations."

  Leboon’s arrest is the latest prosecution stemming from words that authorities say go beyond protected free speech.

  The leader of a neo-Nazi group, William White, was convicted in December of threatening three people over a lawsuit involving housing discrimination in Virginia Beach, Va. And Internet radio host Hal Turner has gone through two mistrials over charges last June that he threatened to kill three federal judges who upheld a Chicago law banning handguns.

  White and Turner said their statements deserved First Amendment protection because they were expressing opinions, not making actual threats. That argument goes to the heart of what is protected speech and what is not.

  Words that are bitter, insulting or even bigoted and hateful are protected by the First Amendment — until they cross a line to become what the law calls a “true threat.”  The barriers a prosecutor must overcome in proving a true threat necessarily are set high: It’s not enough just to make someone fearful.

  Generally, a true threat must be made or relayed directly to the person involved, and there has to be a chance that the threat can be carried out.

  Wishing that a meteor would fall and hit a specific person because of his political stance — or his race or religion — may be crude and repellent, but it’s likely protected speech given the inability of anyone actually to bring about such an event. In the prosecutions noted earlier, defendants were charged with specific threats that reasonably, at least to authorities, could be carried out or that incited others to carry them out.

  As free-speech laws have evolved, the greatest protection has been reserved for speech involving political views and commentary on issues important to the public, even when many might not want to hear it.

  Radio listeners in Missouri may well continue to hear campaign ads from a write-in candidate that are openly anti-Semitic, critical of minorities and that call on whites to “unite … and take our country back.” Federal regulations applying to broadcasters require stations to provide access to airtime, for a fee, and forbid editing or censoring the commercials.

  The ads have prompted criticism — as they should — but stations appear likely to air them. Some Missouri broadcasters are looking into their legal options; one radio group owner is considering running an explanation about the law before the commercials. But without words that constitute a “true threat,” the candidate isn’t likely to face a successful prosecution.

  The First Amendment protects our right to be caustic, to use hyperbole, even to use terms about a group or person that some find repulsive or threatening — but there’s no right to follow that up literally or figuratively by saying, “And so, go get him.”

  And there’s a presumption that others will use their free-speech rights to criticize and oppose the messages they oppose. From Missouri to Washington, we're all better off when that happens.

  About the author: Gene Policinski is the vice president and executive director of the First Amendment Center. Email him.