When Free Speech Isn't Free

Recently I led an effort to have six products from Zazzle pulled because they advocated for the death of President Obama. The vendor in question had 568 products for sale at the time, every one of which was anti-Obama. While I found many of those items personally offensive, I only objected to the six that crossed the line from political commentary into fostering hate and potential violence.

Let me be absolutely 100% clear that I support free speech. If this situation was simply a matter of disliking certain comments, products, or medias, this debate would not even be taking place. But when that speech, product, or media creates a climate of hostility and potential danger to the president of the United States, I believe it is all of our responsibility to question it, call upon it, and stop it from progressing. And there is definitely a precedent for that.

The U.S. Supreme Court ruled in 1919 (Schenck vs USA, 249 U.S. 47) that the First Amendment does not protect speech that encourages "insubordination" against the government when to do so creates or has the potential of creating a "clear and present danger".

The court's summary of that case can be found here. Here is a portion of their decision:

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. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

In October, the Boston Globe reported that threats against President Obama have increased by 400% since he took office and that the Secret Service is understaffed and underfunded to handle all of them. This is further substantiated by a report from the Congressional Research Service in March 2009. And in the new book entitled In The President's Secret Service, investigative journalist Ronald Keesler takes his readers through a behind the scenes look with secret service agents in the line of fire and the presidents they protect and methodically documents the increase in threats against President Obama - as well as the rise in the number of hate groups nationwide. The threats against President Obama are very real and there are people out there who don't need much of a nudge to take action against him.

The AFL/CIO, Anti-Defamation League, and other groups have issued opinions that "jokes" about the death and/or assassination of Obama can be construed as influencing, inciting, encouraging, or suggesting that such an act should be carried out. The Secret Service agrees.

In today's world of escalating terrorism and hate groups, there is zero tolerance policy for any action that can be construed as contributing to a "clear and present danger" against the president, whether that action be an obvious, articulated threat or one that is more covert and/or subliminal. Threats are taken seriously, no matter how vague.

Just like the law prohibiting us from making jokes on airplane about terrorist activities, the First Amendment has limitations. Some may argue that being prohibited from making jokes about blowing up a plane goes too far. It's just a joke, right? Maybe. But that doesn't change the fact that it's still against the law. As is any product, speech, or action that infers violence against the president.

At any other time and with any other president, we might be able to shrug off these kinds of things as some kind of tasteless joke. But this is not another time or another president. And the the threats against him are real, palpable, and urgent.

If the jokes were aimed at your loved one, who happened to be the most vulnerable of any president in U.S. history, would it still be funny?

I want to stress that this is not a political party issue. This is an issue about the safety of the person who represents every citizen of the United States. Even if meant to be a joke, the law doesn't find anything funny about advocating for the president's death. Whether we voted for Obama or not, whether we like him or not, whether we agree with him or not, is completely irrelevant and has nothing to do with this matter.

So, there are limits to what the First Amendment guarantees, and those limits have been tried and tested in court. There are also laws against threatening or inferring a threat against the President and his administration. Censorship and respecting the law are not the same thing.

I will fight for your right to call Obama an idiot. I will fight against you if you say he should be taken out because he is an idiot.