free speech is our most valued and fiercely protected right guaranteed to us by the first amendment but when does free speech become something else especially when it's used on social media at political rallies today in this edition of pro se nation we're going to be examining this most critical issue i married when she avi and welcome joining m today is dr ronald cade chairman co dean of rutgers law school and a former public advocate of new jersey as distinguished professor of law he teaches first year contracts federal jurisdiction and litigate civil rights and civil liberties cases in the constitutional rights clinic he is an active lay leader with the american civil liberties union and serves as chair of the new jersey supreme court advisory committee on professional ethics at what point does free speech becomes something else become threatening language and become language that actually incites violence  at which speech becomes unprotected not protected under the first amendment but it is a very very narrow exception from the usual rule that spoken expression written expression communication of any sort is protected and what you really have to do is that you have to incite a friendly incite people to imminent violence right then and there literally you saying go and hit him or attack her in that situation and therefore more general statements that people who believe x ought to be horsewhipped or even worse is usually found to be too general to vague and too speculative in order to fall within that very narrow exact exemption and i think those of us who value the first amendment realize although it it allows some very distasteful speech rather that way we would we wouldn't want it any other way so you're saying that it's got to be it's got to pose an imminent danger or sometimes they call it clear and present danger clear and present danger that means an act uncontrollable violence or some illegal or some other illegal act and right now or about to be right now  t generally coaxing people to do things at some indeterminate point in the future ok what seems problematic to me is that it may not be posing a a clear and present danger at that moment but is it creating an environment of violence toward this person for instance i don't involve an vironment of violence in general you know i mean the truthful answer may be yes but it's still protected because if we tried to start developing a broader boundaries of speech that could be said to create a hostile environment but doesn't do so immediately you have the problem of where where do you draw the line right a lot of speech these days from all sorts of quarters from different sides of the aisle has unfortunately taken on a very very coarse character i don't think i'm revealing any secrets in that everyone is watching the current presidential trying realizes that but it would be i think i think a much greater problem if government prosecutors judges started saying this is the type of speech we we want to enforce and that would i think pretty probably present an even greater danger to democracy than the current unfortunate dialogue going on now does right i think you know as a writer and a communicator professional communicator and i guess it is just more than ergs me when people and lately we've heard this a lot sort of dismiss language as simply they're just words they they're just words they don't really mean anything which is runs counter to what language is language is is  shaping our view of the world our attitude toward one another so when does when does language become a terroristic threat well a similar  similar test a terroristic threat or any type of threat that the law can actually prescribe it has to meet this test of imminent incitement to violence or covering some other independently illegal act encouraging you to do something right now that is independently illegal simply in gauging in course political speech ok i'm using the euphemism but we all know what we're talking about right the circumstances in which a vat is going to fit that test is going to be really really a very small set of circumstances i don't know if it's even come up yet i suppose if an a political rally someone said can put names to this that hillary clinton ought to be horsewhipped horrified at her whatever will probably most probably be deemed to be the type of political rhetoric that unfortunately as it has become much more common recently but which is the type of political discourse that is completely protected by the first amendment now is there a difference as i understand it there is a difference if you are talking about public figures how different is it well first i'm sure the first amendment all the first amendment does is prevent government from from suppressing speech is a by saying you can't say that or by put imposing some sanction like a criminal sanction on it the first woman doesn't say anything in of itself or what private people can do so right speech  that for instance we had lots of cases someone post something on their facebook page their employer finds out about it right and generally speaking an employer is allowed to take that into account and then you make you lose your job over it right for public figures where where that comes in especially is in the the cause of action for defamation libel or slander right and the supreme court over fifty years ago in a case appropriately kept in new york times versus sullivan said that the what the first amendment says is that in order for a public official or a public figure to prevail in a defamation action in which the the end result is it's not you're not put in jail you're you're at the receiving end of a money judgment for perhaps a civil lawsuit but even in that case the first amendment does not allow a defamation action to prevail against  statement made about apollo figure unless you can show that the defendant acted with actual malice and that has been further explained to mean that the person who sent the communicator the newspaper the word of the spokes person  knew what they were saying was false or knew that it was probably far off acted with reckless disregard of the truth so a lot of the statements that are being made by either you  by donald trump or hillary clinton or their camps about the other side yes the very hateful the very course the very factual but there's no way in which either of them could prevail in a unless they show that the other side essentially knew that they were what they were saying was false and very that communicated defamatory meaning and of course they would also have to show that it was in fact false right  so you're so basically whether it's a public figure or a private figure you're allowed to say whatever you want as long as it's true if you do is true then there is no cause of action for defamation there are some times there's another cause of action forms of invasion of privacy putting someone in a false light but the supreme court has basically said the same rules apply that these are very old common law causes of action that we inherited from england but which the supreme court has now imposed american constitutional gloss on and basically what you're saying is true is objectively true then the really cannot be but there are you know what we hope who really controls what we say on social media does that come under the same rules of def defamation rules the don't and that's probably part of the reason why we're getting the these problems yes to that they're governed by the same rules you can say what you want on social media and there's very little unless you literally try to incite imminent violence everyone get up out of their chairs and go beat up someone right now which is sort of difficult i'm i'm social media had too much to do that if you know i don't know fifty or more people ganged up on somebody on social media and they just you know they have their spewing hate full horrible things and and it causes that person to do something crazy either to themselves or someone else you're saying that still is not that doesn't cross the line well of course there are circumstances in which it could but generally speaking if you're just saying context is not easily articulated but generally speaking the same rules apply there's generally very little that the government can do some read to criminalize speech even hateful speech and the marketplace of ideas will will decide it's been coming up a lot as you probably know in the school situation where students are subject to cyber bullying not physically on school grounds right but in those areas and schools have had to come to terms with what types of rules they can adopt that regulate the behavior of students and faculty and staff and for that matter a stance of liza when they're off our school grounds and that's becoming a difficult issue but i think with regard to the political campaign probably and not so much an issue because they were dealing with a particular vulnerability of students or be a particular young students and there perhaps some things that government can do occasion to look recently at new jersey's fairly recent anti school bullying statute and even though it's the definition is fairly tightly drawn so that it doesn't start making sanctionable even by detention or something like that expression that might be course but that is still protected and and should be subject to government  there is nothing a last however that stops an individual person from being as discriminatory in their individual expression they can say as hateful things as just going to tell you guys as they want the first amendment it also becomes different if they are operators of public places the public accommodations generally speaking restaurants schools hospitals obviously institutions like that by statute they cannot act in a discriminatory fashion no matter what the personal beliefs may be of their of the people who operate them if they fall within fall within the statu for instance they burned in effigy president obama they they have recently someone is doing this with hillary and this is considered as i understand it symbolics meet each again when does that cross the line it's really the same wind symbolic speech like that burning crosses burning the flag right both of which situations the u s supreme court has addressed and found that basically that is protected speech unless again the symbolic speech is the symbolism the act that symbolizes the speech is saying go and hurt someone extremely offensive and by many americans they say this would incite me to violence if i saw it happen but even there the supreme court actually in opinion written by the late justice scalia was certainly not known as a flaming liberal but wrote that no the first amendment says you get to do this you know that it it is what you're regulating is the at the speech part and not the actual after party if you want to have a genera relation that says you can't burn a pizza piece of cloth on the public sidewalks because the safety reasons you can do that have something else but that's not what the statue did they said only if that piece of cloth is actually a united clearly what they were trying to regulate was the communicative aspects of the act and not the act itself in those cases it is speech just like anything else and unless you incite imminent uncontrollable violence it is protected  right i guess you know when you keep bringing up that aspect of it and i do wonder for instance when we going back to the rallies if something's being said at a rally that's far away from for instance the candidate it is being said about ok but then does it does proximity change it for instance if these hateful sort of violent kind violent language is used outside of the doors where the candidate actually is it does that come into play and to in danger that person or their entourage well that brings up another aspect of the law that police very often have to deal with which is to what extent can they regulate both demonstrators and especially counter demonstrators who write at an event can they limit that person's  access and the court has been dealing with that as well to what extent can you prevent pro pro life demonstrators how you can they get to an entrance true a reproductive rights clinic and the court is generally held that they have a right to be usually within sight and sound are some sensible things you can take you can't be right at the doorway and try to obstruct entrance so they can adopt certain regulations regarding how close you can get so that you don't interfere but so you're saying once an action is taken for instance obstructing presenter regulations that allow free intend egress and ingress and then possibly do not have to very opposed to hostile groups right in each other's eminent danger of uncontrollable violence between the two that all the speech should be suppressed that did not work for a while and i mean this as a compliment to the knights of columbus and the ancient order were not very convincing in these in saying that we would be moved to uncontrollable violence these are very very i would say peaceful right people who are obviously had a very pungent point of view and the court has got to be convinced that there is no way that the police can control this before they start saying you can't even be there the one exception ten story when the president of the united states is and is giving a speech and there the secret service has come up with these very controversial notion of free speech zones other people who like me considers themselves civil libertarians see the entire country as a free speech zone you you can't designate don't predict that's not my area but it is certainly possible but apart from that usually you're allowed to a certain public land that's controlled by the public and certainly property that has his started of historically been used for expressive activity there is the historical town square where people back to express themselves in order to deny you the right to publicly voice your opinion in in a protest you really got to show that the police have got to show really that uncontrollable violence is going to result and we can't control it r g one more question where the clock is ticking but i had a got a few questions from facebook friends and acquaintances and one i think that's  it's important it's certainly important to this person who asked it in our effort to have politically correct speech language is that having an impact on our right to free speech that was his question it's a little difficult to answer it in quite those terms of i don't necessary i guess who is the i know that there is a contention among people who i know too that there is this social move to to risk restrict free expression and they've given it the label political correctness obvious my answer is that there is no free speech gives you absolutely the right to be pilled politically incorrect  have friends from other political persuasions who say i'm politically correct all the time and it is absolute recognized as your right now the first amendment of course does not give you the right to be free from others not reacting well to your speech if people don't want to associate with you if they don't want to start with they don't agree with you that's their first amendment right so to the extent that the first amendment allows other people to not associate with you or do other things in their own private actions to express their disagreement with you if you want to call that political correctness well the first one gives them the right to do that too right  do that i think ninety nine percent of the people would not dream of doing right or ways of expressing themselves those barriers right now in this current presidential election seem to be lowering in a way that i think is disturbing a lot of people no matter how they  let what their political preferences are and i for one sort of hope that there is some softness trait exercise in the future as well but i would be the first to say it can't be government that is imposing those restrictions we all hope we have a sense of what we think our conduct the conduct of the primaries within which we feel comfortable engaging ourself and thank you for joining us for this edition of protein nation if you have any ideas for