When is Free Speech Unfree?

This question does keep coming up. And up, and up. When is free speech free speech and when is it incitement to murder? (That’s only one version of the question, of course. It can be phrased other ways. When is free speech protected as such and when is it not because it is incitement to violence? That’s another version. There are more.)

Scott Jaschik has an article at Inside Higher Ed where the question seems to be in play, although it’s not absolutely clear whether the people involved in the matter actually phrased it that way. It’s also not clear whether that was avoidance or just lack of clarity – confusion, in short.

An adjunct English instructor at Warren Community College in New Jersey resigned a few days ago, after an email he sent to a student who was organizing a pro-war lecture set off a controversy.

Daly’s e-mail said that “real freedom will come when soldiers in Iraq turn their guns on their superiors and fight for just causes and for people’s needs.” He also wrote to the student, head of the campus chapter of Young America’s Foundation, that “I will continue to expose your right-wing, anti-people politics until groups like yours won’t dare show their face on a college campus.”

Stark enough. Does saying ‘real freedom will come when soldiers in Iraq turn their guns on their superiors’ constitute free speech – protected, protectable free speech – or does it constitute advocacy of murder? Or are the two the same? Ought advocacy of murder – in certain circumstances, or in any and all circumstances – to be considered free speech and protected as such? And does saying ‘until groups like yours won’t dare show their face’ constitute a threat, or is it clear that he means ‘dare’ in the sense of ‘for fear of shame and embarrassment’ rather than ‘for fear of being attacked’?

In interviews conducted as conservative groups organized a campaign to have him fired, Daly stood by the substance of his e-mail…But Daly said that since she had sent her e-mail from a personal account, and he had replied from a personal account, there was no reason for the college to be involved. He also said in an interview on Sunday that he was not advocating a literal revolt by soldiers, and that he would have replied with a different tone had he realized he was communicating with a student.

Enter mitigating circumstances. He thought he was sending a personal email. Casual conversation is subject to different norms from publication. On the other hand email to strangers perhaps falls somewhere between those two categories. Or perhaps not. Using threatening language to a stranger is different from using it to a friend; whether or not the threat applies to a third party also changes things; whether the more clearly threatening language applies to a distant third party while the more ambiguous language applies to a group that the stranger belongs to, also changes things. Complicated, isn’t it. As the president of WCC said.

Austin called the First Amendment “the most precious freedom all Americans share,” and said that he was “committed to working unceasingly” to protect the freedom of speech of students and faculty members at the college. But he said that he also had an obligation to enforce state laws and college policies “to ensure that all members of our college are free and encouraged to exercise their right to free speech without fear of intimidation or retaliation.”

There seems to be a real knot here, one that it’s hard to cut through. Daly seems to be in trouble (and hence to have resigned his job) merely for something he said in what he thought was a personal email. But the wording of his email was at least arguably somewhat intimidating, and intimidation is not a trivial matter. (Ask any civil rights worker or union organizer.) Threats and intimidation are where free speech law and practice and theory get very, very tricky.

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