The First Amendment to the United States Constitution reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. Nowhere in its text does it prohibit speech that people might find offensive, which goes against the grain of generally accepted public opinion, or is critical of the government.
Indeed, Schenck v. United States, 249 U.S. 47 (1919) created a “clear and present danger” test for consideration when hearing cases involving government criticism. Writing for the Court, Justice Oliver Wendell Holmes, Jr. explained that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”. With that in mind, I am aware that rock guitarist Ted Nugent has been in the headlines this week for a speech he made at the NRA convention last weekend, which some people felt bordered on advocating violence toward President Obama. He has drawn a lot of harsh criticism for his speech noting that “If Obama becomes the president in November, again, I will either be dead or in jail by this time next year. He went on to note that “Our president and attorney general, our vice president, Hillary Clinton… they’re criminals. They’re criminals”. The rocker and longtime conservative also likened the president and his administration to coyotes. “It isn’t the enemy that ruined America. It’s good people who bent over and let the enemy in,” he said. “If the coyote’s in your living room pissing on your couch, it’s not the coyote’s fault. It’s your fault for not shooting him.” And sure one might reasonably conclude that this kind of speech is highly controversial and inflammatory, but I fail to see how it poses a “clear and present danger” as outlined by the Schenck court and elaborated by future opinions.
In Dennis v. United States 341 U.S. 494 (1951), the court wrote that when looking to restrict free speech the courts must ask whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.” Six years later the Yates court, 354 U.S. 298 (1957), noted that courts must consider “the advocacy of action, not ideas”. In Brandenburg v. Ohio, 395 U.S. 444 (1969)., the court noted that “decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action” I have seen countless articles pulling bits and pieces of Nugent’s speech out of context as I have done myself in this post. However, in looking to the entire speech in its context one can clearly see that while Nugent’s words were clearly a call to action and not merely the expression of ideas, the action he was proposing was not aimed at armed insurrection – rather it was the battle cry that “We need to ride into that battlefield and chop their heads off in November”. Criticism of the government and advocacy of unpopular ideas that people may find distasteful, such as hate speech are permitted and protected by the Constitution and there is no doubt in my mind that Nugent’s words, however offensive they might have been to many, were and are protected. Nugent’s own clarification on the matter says it all:
“By no stretch of the imagination did I threaten anyone’s life, or hint at violence or mayhem. Metaphors needn’t be explained to educated people.” I also think that people have been giving far too much credence to the fact the Secret Service interviewed Ted Nugent about the matter yesterday. For one thing, they have their own scandal going on at the moment and were probably greatly relieved to have some media attention concerning anything other than prostitutes. For another, the Secret Service routinely interviews hundreds of individual every year on a variety of matters concerning national security. During George W. Bush’s administration a 13 year old boy in Kentucky was carted in front of the Secret Service and a 14 year old girl was ambushed by them outside her freshman biology class.
Last but not least, I think when looking to the words and deeds of any individual, careful consideration should be placed in the context of their entire life and not just one speech, however controversial and inflammatory. For instance did you know that he is a national spokesperson for D.A.R.E – Drug Abuse Resistance Education – and an Ambassador for Big Brothers/Big Sisters? Were you aware that he hosts “Spirit of the Wild,” a show on the Outdoor Channel that is the six time winner of the Golden Moose Award for programming excellence, including two this year? Did you know that he has twice been a guest star on “The Simpsons,” appearing on Season 19 and 23 of the show? Did you know he successfully managed to dodge the draft during the Vietnam War?
I really think it is time for us to move on to more compelling dialogue. Our country is in disarray; we are still at war in the Middle East, Syria and Iran present new challenges whose scope are unclear, unemployment is still an issue, the economy is still on shaky ground, and Mitt Romney travels with his dog strapped to the top of his car.
[On a side note I recall saying a lot about George W. Bush that many would consider to be far more inflammatory than anything I have ever heard coming from Ted Nugent over his long years as an extremist gun-toting conservative.]