Protecting Freedom of Speech

            The liberty principle for this Freedom Friday concerns the right to speak freely. This is a freedom that is obviously important for free citizens in a free nation. It was guarded closely by the Founders of the nation. However, there seems to be a fine line between this freedom and the breaking of laws.

            According to a recent decision by a three judge panel of the Ninth Circuit Court of Appeals, encouraging people to break the laws of the land is protected free speech. The panel of judges, two appointed by Bill Clinton and one appointed by Barack Obama, ruled that people are protected by the First Amendment when they encourage illegal immigration. The law that was declared to be unconstitutional in the 2017 case pre-dates the Trump administration.  Former immigration consultant Evelyn Sineneng-Smith had been convicted under the law for encouraging “illegal immigrants to apply for various government benefits they were ineligible to receive.” She was also convicted on charges of tax and mail fraud, which were upheld by the 9^th Circuit panel of judges. The 42-page ruling included the following statement.

A speech addressed to a gathered crowd, or directed at undocumented individuals on social media, in which the speaker said something along the lines of “I encourage all you folks out there without legal status to stay in the U.S.! We are in the process of trying to change the immigration laws, and the more we can show the potential hardship on people who have been in the country a long time, the better we can convince American citizens to fight for us and grant us a path to legalization,” could constitute inducement or encouragement under the statute.”

But, this general advocacy could not be considered incitement because there is no imminent breach of the peace. It would not be aiding and abetting or solicitation because it is general and is not advocating a crime. Instead, it is pure advocacy on a hotly debated issue in our society.”

            So, it seems that one can advocate for illegal immigrants to continue to stay in the country illegally but not to actually incite people to break the law. In a way, this is encouraging other people to enter the country illegally, but it is not direct encouragement to do so.

            Some people who threaten the President of the United States are given a similar pass. The Secret Service is charged with investigating all verbal and written threats against the president. They have to determine what is a real threat and what is just someone venting and balance protection of free speech with protection of the President. Dan Emmett, who once served as a Secret Service agent on presidential protection duty, gives the following explanation. 

Each year, thousands of threats against the life of the president come to the attention of the United States Secret Service. These threats are obviously taken very seriously by the Secret Service, and each is investigated to the fullest. But not all individuals who make such threats are prosecuted.

[Emmett quotes the relevant law.] While this sounds final and precise, Secret Service agents and prosecutors must make many judgment calls. Legally, enforcement hinges on three factors: First, that the person uttered or wrote words alleged to be a threat against the president. Second, that the person understood and meant the words as a true threat. And third, that the person uttered the words knowingly and willfully. It is not necessary under the law to prove that the person intended to carry out the threat.

A statute like this, which makes criminal a form of pure speech, must be interpreted with the First Amendment in mind. The Secret Service and the United States attorney’s office both want to protect the president, and neither wants to trample free speech. After all, most people who threaten the president are speaking out of emotion, and few have the ability, resources or opportunity to harm the president.

            It is good to know that Freedom of Speech is being protected. However, it is also obvious that there is a fine line between what is protected speech and what is dangerous to the President or to the country.