From: wdstarr@athena.mit.edu (William December Starr)
Subject: Re: Freedom of Speech = Not Responsible?
Organization: Northeastern Law, Class of '93
Distribution: usa
Date: Thu, 8 Oct 1992 16:18:03 GMT


In article <1992Oct2.164925.18263@nosc.mil>, 
sampson@cod.nosc.mil (Charles H. Sampson) said:

> In a recent article, the Los Angeles Times reported on yet another
> "rappers made me do it" case.  In this case a woman was suing a rapper
> because a miscreant had shot her policeman husband shortly after
> listening to a number by the rapper urging people to do just that.
>
> In the article, the Times said that all previous such cases had been
> thrown out on grounds of freedom of speech.  I was surprised at
> this.  My understanding of freedom of speech is that the government
> cannot prohibit anybody (well, almost anybody) from saying anything
> (well, almost any- thing), but that, in general, when a person says
> something he has to take responsibility for having said it.  This is
> particularly true when the person advocates an action, else what's
> incitement to riot for?
>
> Was the Times wrong in its summary of the previous cases, or does my
> idea of freedom of speech need revision?

I think it goes roughly like this:

The First Amendment says that Congress shall make no law abridging the
freedom of speech.  Courts over the years have subsequently ruled that
this means that Congress may make laws that abridge the freedom of
speech.  This is what is meant by "Constitutional Law."  *sigh*

Okay, enough bellyaching... the way the doctrine usually works is that
laws which abridge the freedom of speech are acceptable if there's a
good enough state-interest-based reason for them.  Thus, laws regarding
obscenity, libel/slander, fraud, incitement to riot, etc., generally
pass constitutional muster.

On the other hand, a law which is not backed up by a sufficiently good
state interest (I'd like to say "by a compelling state interest," but
the term "compelling interest" has, through a succession of Supreme
Court decisions, taken on a special and specific meaning, and I'm trying
to stay general here) will be ruled not to be constitutional; the
importance of respecting the constitutional guarantee of freedom of
speech will be said to have trumped the "public good" interest advanced
by the law.  Saying that the law was "thrown out on grounds of freedom
of speech" is a standard bit of shorthand for expressing what happened.

Needless to say, there's been a great deal of disagreement over the
years regarding whether any given infringement on the right of freedom
of speech is sufficiently justified by the state interest.  With regard
to "inciteful" speech, the _general_ doctrine is that the law may chill
this right only when the speech has actually and immediately incited
violence, and even then the law must require a showing that the speaker
knew or should have known what effect his speech would have.  Extending
this idea, which in the past has been applied only to live, realtime,
in-person speeches before incitable crowds who subsequently rioted, to
recorded, distributed speech is a bit of a stretch, one which I don't
think can fly absent an explicit Supreme Court ruling that it can.  (Not
that such a ruling would surprise me, mind you, not with this Court...)

-- William December Starr <wdstarr@athena.mit.edu>
Newsgroups: misc.legal