The first and probably least understood rule about the First Amendment is that freedom of speech does not mean freedom from consequences.
That is, you can say whatever you want, but there’s no guarantee that there won’t be consequences. A bank robber can’t say, “Give me all your cash,” and claim it’s protected by the First Amendment as freedom of speech.
So to hear attorney Marc Randazza say of his neo-Nazi publisher client, Andrew Anglin, that he had a right to call for a troll storm of Montana resident Tanya Gersh and other Jewish residents of Whitefish, well, that’s a desperate attempt by a lawyer who should have a better understanding of the First Amendment.
No one is arguing that Anglin didn’t have a right to say what he wanted about Gersh or the Jewish faith. Under that same freedom, he may have even had the right to call for a trollstorm — an online call to harass, intimidate and commit violence against a person.
But speech has consequences. Just like inciting a lyching or a riot can be a crime, so to can fomenting action against someone that would result in a loss, whether physical or financial.
We suppose that Randazza cannot possibly justify his client’s repugnant views, so he must instead attempt to find some legal toe-hold to defend a client whose sole purpose seems to be sowing racial hatred. And, we also respect that everyone — even neo-Nazis — should be afforded legal counsel if charged with a crime. If our legal system means anything, it must be that all parties have adequate counsel for justice to truly be carried out effectively.
However, Randazza’s argument seems to be a repetition of the most common misperception of First Amendment law — that the First Amendment absolves anyone from the power of their ideas.
True enough, if one of an Anglin’s unhinged readers who visit the hate site, The Daily Stormer, act because of his words, they too must be held responsible for their actions as an individual. In other words, neither Anglin nor his overactive readers should get a free-pass because of free speech.
But Anglin and his site wasn’t just merely expressing an opinion, it was urging action. It was calling for a trollstorm where anonymous people threatened and intimidated her family because of her religion.
This call-to-action, not merely an opinion, is what changes the argument here. To portray this as a matter of protected speech is like calling an orange a carrot just because both are colored the same. They’re two very different things.
Randazza is right on one point, though.
“(The First Amendment) does not require politeness or kindness,” he wrote.
And while we condemn in harshest possible terms Anglin’s world views and recognize his words as juiced up, recycled old anti-Semitism, the First Amendment does not require thoughtful, nice or even courteous discourse.
Our words have power. And we have the ability to use them because we are free. That’s a pretty powerful combination — living in a place where everyone has a voice and can chose what they mean. Yet, that also means that there has to be some sort of responsibility; some sort of check.
We have seen the courts reaffirm that principle time and time again. You can’t yell fire in a crowded theater because those words have actions that could lead to harm. You also can use the Internet or other electronic communication to urge harm, for example, suicide. We’ve seen the courts understand that in several tragic recent cases.
While you might expect a newspaper to stand solidly on the unpopular ground of backing what Anglin did as a free speech, you’ll find no defense of the neo-Nazi here.
If it were just a horrible opinion he’d expressed, we would urge readers to treat Anglin as no different than any other online troll — ignore them, because their only legitimacy is often the attention they find by the outraged decent folk.
But there’s a different between a thought and a call-to-action.
Anglin and his lawyer confuse speech and thought with action. They would like you to believe they’re upholding some kind of American principle. Yet, a freedom to do whatever you want with consequence is exactly what those who wrote the constitutional freedoms worried about — an unrestrained and unfettered power without any check, balance or responsibility.
— The Billings Gazette