Not all speech is protected under the First Amendment to the U.S. Constitution. The oft-quoted passage, from Oliver Wendell Holmes, Jr., “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic”, establishes the need to examine the particular circumstances of each act. If the words are of such a nature “as to create a clear and present danger” so as to wreak havoc on policies the government is permitted to enforce, they are not protected speech. Whether the danger is clear and present “is a question of proximity and degree”- circumstances matter. Thus, in the famous Espionage Act case where the secretary of the Socialist party (Schenck), sought to distribute about 15,000 flyers aimed at obstructing the recruiting and enlistment service of the United States, WHEN the U.S. was at war with Germany, circumstances stripped the words of any constitutional protection. If the country had not been at war, the actions may have been protected. The same analysis applies to the theatre example.
Today the New York Times, and many others, condemned the actions of Pamela Geller during her promotion of the Prophet Muhammad Art Exhibit and Contest in Garland, Texas where two terrorists were “shot to death by a traffic officer before they could kill anyone”. The Times relied on their “Editorial Board” to pen the piece, and accused Geller of being a “blatantly Islamophobic” provocateur, they did not argue that her actions were unconstitutional. The board did not mince words, when they said, “As for the Garland event, to pretend that it was motivated by anything other than hate is simply hogwash”. Well, maybe- but it is still protected conduct and not “hate speech”, in the sense that she is legally unauthorized to conduct such events. It may be distasteful for some, and not others. Geller’s point appears to be that she will not have her constitutionally protected speech and conduct “abridged” by anyone- especially by those she suspects to be even remotely connected to terrorists. The Times appears to take the position that she is painting all Muslims as evil and dangerous radicals and she “revels in assailing Islam in terms reminiscent of virulent racism or anti-Semitism”. The fact is, there are no circumstances present in the Geller events that present a clear and present danger in the sense proscribed in the Schenck case. One may not appreciate her tactics, just as some people are grossly offended by pictures depicting a fetus in the womb, shortly before an abortion, often distributed by anti-abortionists. But to attack her as a racist and evil person because of her actions, seems to imply that her conduct should not be protected- that is going down a slippery slope- all Americans are entitled to share their opinions lawfully- and in this country, you will not lose your head over it. I find myself agreeing with the writer in the Salon article where she writes about the Garland matter: “ . . . we witnessed two tragic caricatures: one masquerading as Islam and the other as a defense of American freedoms”. However, I support Geller’s right to hold her events no matter how distasteful they might be.