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Incitement, Fighting Words, and First Amendment Rights (Opinion)


By Jerry Snyder

“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.”First Amendment to the United States Constitution.

On the afternoon of Sunday, August 13, 2017, a photograph circulated on social media showing University of Nevada, Reno (UNR) student and employee Peter Cvjetanovic participating in a march to prevent the removal of confederate monuments in Charlottesville, Virginia.

This march, although nominally an exercise in “uniting the right,” was organized by neo-Nazis, and it appears that the large majority of the participants were on the most racist and white supremacist fringe of the right. The march was accompanied by a vigorous counter-protest. One of the counter protesters was murdered, and several were injured, when James Shields Jr. drove his car into a group of counter-protestors.

Almost immediately upon learning that Mr. Cvjetanovic was involved in the protest, community members called for him to be disciplined and/or terminated from employment at UNR. UNR’s president has announced that Mr. Cvjetanovic will not be disciplined or terminated.

In my analysis, that is, as a matter of law and as a matter of public policy, the right decision.

The United States Supreme Court has held that public employees may not be terminated or disciplined for exercising free speech rights where the subject speech (1) relates to a matter of public concern, and (2) does not relate to the employee’s job duties. Garcetti v. Ceballos (2006).

Here, I think that the subject of Mr. Cvjetanovic’s speech most certainly is a matter of public concern – the fact that he is on the wrong side of the argument does not mean that the topic is not a matter of public concern. I am speculating that this does not relate to his job duties, although, to be fair, I don’t know what his job at UNR is.

So the next question is whether Cvjetanovic’s is protected speech in the first place. The U.S. Supreme Court has created two potentially applicable classes of unprotected speech that may be applicable here: the “incitement” doctrine and the “fighting words” doctrine.

In Brandenberg v. Ohio (1969), the U.S. Supreme Court overturned a conviction for advocating violence under Ohio law where the defendant, a KKK member, invited a television station to film a KKK rally. At that rally, Brandenberg made public statements that made reference to the possibility of “revengeance” against “n——“, “Jews”, and those who supported them.

The Brandenberg Court held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

In order to find that the speech is unprotected incitement, there must be intent, imminence, and likelihood. Thus, when Ice-T sings “I’ve got my twelve gauge sawed off/ I got my headlights turned off/ I’m ‘bout to bust some shots off/ I’m bout to dust some cops off,” it is protected speech. If I told a man holding a loaded gun pointed at a cop that he should squeeze the trigger, that would be unprotected incitement.

Here, I have not seen any evidence to indicate that Mr. Cvjetanovic made any statement that rises to the level of incitement. The slogans shouted at that rally were certainly as vile a statement as one can imagine. The underlying sentiments are an unconscionable evil arising from the darkest dungeon of history.

But I have not seen evidence to show that they were intended to incite imminent lawless action or that they were likely to incite imminent lawless action. It is early, and I am open to the possibility that such facts come to light, but I have not seen facts showing that Mr. Cvjetanovic made statements that could be classified as “incitement” under the standard articulated in Brandenberg.

As far as the “Fighting Words” doctrine: in Chaplinsky v. New Hampshire (1942), the court held that fighting words, or words “that by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are unprotected. The Court has tended to interpret this doctrine narrowly since that time.

In the most relevant application, the Supreme Court in National Socialist Party of America v. Village of Skokie, (1977), held that displaying the swastika in a Nazi march in a town with a large Jewish population did not constitute “fighting words” and was thus protectable speech.

As with my analysis of incitement, I have not seen any evidence to indicate that Mr. Cvjetanovic made any statement that the court can define as “fighting words” as the U.S. Supreme Court has defined that term. Maybe such evidence will come to light, but I have not seen it yet.

Maybe the court could, in a case brought before it today, hold that sensibilities have changed to such a degree that the bar has been lowered for what qualifies as “fighting words.” However, I do not see much reason to think that will happen.

Because Mr. Cvjetanovic’s participation in the rally does not qualify as incitement or fighting words, I believe that the U.S. Supreme Court would today find that this participation is protected speech, and as such cannot form the basis for termination or academic discipline.

I have heard various voices arguing that even if Mr. Cvjetanovic’s speech is protected, he could still be disciplined under the UNR Code of Conduct. That dog won’t hunt. UNR is a state university, and as such its actions are government actions. A local government entity cannot get around constitutional limitations on government action by imposing a “code of conduct” on its students or employees. The United States constitution is the supreme law of the land. Full stop.

I think that the legal analysis settles the question of whether UNR ought to have taken disciplinary action; in my practice I do my best to encourage clients to act within the law. By taking disciplinary action against Mr. Cvjetanovic, UNR would not only be acting contrary to established First Amendment principles, it would be courting an expensive legal disaster.

That is the legal analysis. This is why that analysis, and these principles, matter to me; why I think that this analysis embodies an important public policy – indeed, maybe the most important public policy.

First, I don’t want the First Amendment eroded at any margin – even at the Nazi margin. If we say the government has the ability to control speech one area, do we think that it will remain limited to that area?

Donald Trump has repeatedly made statements that evidence a desire to control what can be said about him by the press. Do we trust this administration to make good judgments about what kind of speech we want to allow and what kind we do not? I think that putting up even marginal limitations about what kind of speech must be tolerated is a slippery slope.

Second, I don’t think that any bad idea ever died because a government told people not to talk about it. To the contrary, I think that attempts to limit speech often lend force to the underlying ideas. I think that current American Nazis, white supremacists, and other brands of right wing whackos define themselves by a misguided sense of being oppressed.

Attempts to limit the ability of these groups to demonstrate feed that sense of oppression and therefore strengthen the power of the identity. If you justify your actions by telling yourself that you have been treated badly, any limitations imposed on your ability to speak will only serve to solidify your view.

Third, I think that “evil hateth the light.” I think that an open and public discussion of bad ideas is a more effective way to counter those ideas than is an attempt to prevent the public articulation of those bad ideas. I am not so naïve to think that there are not plenty of horrible ideas that spread like a brush fire in cheat grass – particularly in today’s social media environment.

However, I have not seen anything to shake my conviction that the solution to speech we don’t like isn’t censorship or punishment, it is better speech.

Jerry Snyder has been practicing law for nearly two decades in California and Northern Nevada, both in private and government practice. Jerry has represented individuals and businesses of all sizes, from small entrepreneurs to large public companies. Jerry has worked with individuals, companies and communities, and excels at delivering sensible solutions, regardless the size of the client or the scope of the situation. He has extensive experience litigating cases in areas of construction law, water law, corporate governance, real property law, business torts, and intellectual property. 

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