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Trump – et Call and the Charge

March 12, 2016

A question begged concerns the Supreme Court’s definition of protected speech. Protected speech is free speech. The 1st Amendment tells us Free Speech is protected in America. However, judicially defined exceptions and special protections exist. These judicially determined cases are narrow and specific so as not to limit free speech more than necessary to protect third party rights under equal protection guidelines.
In 1942 the Supreme Court in Chaplinsky v New Hampshire [315 U.S. 568] held that speech is unprotected if it constitutes “fighting words”. Fighting words, are defined by the Court, as speech that “tends to incite an immediate breach of the peace” by provoking a fight, so long as it is a “personally abusive word which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction” (as clarified in Cohen v. California, 403 U.S. 15 (1971). ‘Personally abusive’ means the words must be “directed to the person of the hearer” and is “thus likely to be seen as a ‘direct personal insult'”. In Virginia v Black [538 U.S. 343 (2003)] threats of violence that are directed at a person or group of persons that has the intent of placing the target at risk of bodily harm or death are generally unprotected; but where the ‘reasonable person’ would understand the words as ‘obvious hyperbole’ there is no protection [Watts v. United States, 394 U.S. 705 (1969)] Also, In NAACP v Claiborne Hardware at 458 U.S. 886 (1982), the Court determined that where threats of ‘social ostracism’ and of ‘politically motivated boycotts’ are generally protected, when it is judged that political speech ‘can be a threat’ even political speech becomes unprotected.This brings us to Trump’s statements especially his statement at the recent rally when he said ‘if any one sees someone with a tomato hit them first’. Add such statements to increasingly hostile depiction of “religious Islam” as opposed to “political terrorists using Religion to build collective effervescence” and the mood of volatile and emotion driven crowds create a frenzy of hate that plays out in collective and behavioral responses to political speech.

A question then was this ‘personally abusive’ according to the Court’s definition? I will allow you to digest this and decide. I argue today’ immediacy in digital communication and media satisfies this need of ‘personal immediacy’. Even if not does Trump fall in the exception to the excepted protection for political speech?

My opinion? Trump has stepped over the line. If not, he is dangerously close. Wake up America!

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