Philadelphia magazine recently published an article called “Being White in Philly,” with the subtitle, “Whites, race, class, and the things that never get said.” Compared to many articles about race relations, it was pretty bland, and not hateful. (It would be protected by the First Amendment even if it were hateful. See R.A.V. v. St. Paul (1992).) But the Mayor of Philadelphia, Michael Nutter, thinks the magazine should be investigated merely for running it. In a letter to the Philadelphia Human Relations Commission, the mayor claims:
[T]he First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way. I ask the Commission to evaluate whether the “speech” employed in this essay is not the reckless equivalent of “shouting ‘fire!’ in a crowded theater,” its prejudiced, fact-challenged generalizations an incitement to extreme reaction.
Labeling speech as being like “shouting fire” in a crowded theater is the classic lame excuse for restricting free speech. The mayor’s understanding of the First Amendment is just wrong: Even “incitement to extreme reaction” is protected by the First Amendment unless it is an intentional incitement of immediate violence or unlawful action, under the Supreme Court’s decisions in Brandenburg v. Ohio, 395 U.S. 444 (1969) and Hess v. Indiana, 414 U.S. 105 (1973). The fact that speech leads to extreme but non-violent actions (which the article has not even done) doesn’t make it unprotected.
The First Amendment limits government investigations even when they can only lead to civil, non-criminal penalties — such as civil-rights investigations or a Human Relations Commission inquiry. For example, in White v. Lee, 227 F.3d 1214 (9th Cir. 2000), a federal appeals court held that federal officials could be sued under the First Amendment for launching a lengthy civil-rights investigation that threatened civil penalties against citizens who publicly spoke out against a housing project for protected-class members (a project protected by the federal Fair Housing Act). This was so even though penalties were never actually imposed, since a lengthy investigation would chill a reasonable person’s speech (even though it did not actually succeed in shutting the citizens up).
A mayor’s attack on a speaker need not contain an explicit threat of censorship to violate the First Amendment. For example, a federal appeals court ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003).
Similarly, a village official’s hostile reaction to an advertisement in a chamber of commerce publication violated the First Amendment rights of the businessman who purchased the ad. See Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991). Even non-criminal sanctions by city officials or agencies that do not impose financial penalties can violate the First Amendment. See Columbus Education Association v. Columbus Board of Education, 623 F.2d 1155 (6th Cir. 1980) (formal government reprimand violated First Amendment, even though it had no financial consequences); Little v. N. Miami, 805 F.2d 962 (11th Cir. 1986) (censure resolution by city council potentially violated First Amendment).
Philadelphia Mayor Michael Nutter’s conduct is disgraceful and shows contempt for basic First Amendment guarantees.
Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”
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