Wednesday, November 7, 2012

Free Speech and the Victory Speech

By Associate Professor Aaron Caplan

Barack Obama's election -- and now re-election -- signal America's willingness to select as its leader a member of a historically reviled minority group. The group I refer to, of course, is constitutional law professors.

The President's familiarity with America's constitutional history crept into his Tuesday night victory speech, but perhaps at a frequency that only dogs or fellow con law professors could hear. Consciously or unconsciously, he echoed sentiments from a case studied in most First Amendment courses, Terminiello v. City of Chicago (1949). Terminiello was one of a series of important decisions involving civil rights and freedom of speech that arose from Chicago's tumultuous racial and ethnic tensions of the mid-20th century. As a proud Chicagoan, President Obama would certainly be familiar with this line of cases, which also includes Hansberry v. Lee (1940) (segregated housing), Beauharnais v. Illinois (1952) (hate speech), Gregory v. Chicago (1969) (civil rights demonstration), Organization for a Better Austin v. Keefe (1971) (protests relating to segregated housing), and Collin v. Smith (1978) (neo-Nazi parade).

In Terminiello, an angry crowd demonstrated outside an auditorium where a demagogue delivered a reactionary and anti-Semitic political speech. To avoid a riot, police arrested the speaker for disorderly conduct. At trial, the jury was instructed that a defendant's behavior "may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm."

The Supreme Court reversed the conviction. In its most widely-quoted passage, Justice William O. Douglas's majority opinion relied on a bit of verbal jujitsu to declare that the vices identified in the jury instructions were actually virtues: "[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Justice Douglas's opinion in Terminiello echoed in this passage of the President's victory speech in Chicago:

> Democracy in a nation of 300 million can be noisy and messy and complicated. We have our own opinions. Each of us has deeply held beliefs. And when we go through tough times, when we make big decisions as a country, it necessarily stirs passions, stirs up controversy. That won't change after tonight, and it shouldn't. These arguments we have are a mark of our liberty.

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