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Pat Robertson, free speech and the court of public opinion
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar
09.04.05

The day after religious broadcaster Pat Robertson made headlines last week, a reporter called me from Al Arabiya, a Dubai-based Arabic satellite station. Her first question: Was Pat Robertson’s statement about “taking out” Venezuelan President Hugo Chavez protected speech under the First Amendment?

That’s not a question American reporters would think to ask. After all, Robertson’s remarks were relatively mild compared to much of the angry, offensive and controversial speech that fills America’s airwaves. Any number of foreign leaders are condemned to death on talk radio every day. Free speech is a messy business — and most of us prefer the mess to government censorship.

So my short answer to Al Arabiya was “yes.” As much as it may offend many people, Robertson is free to argue that the American government should assassinate a particularly troublesome foreign leader.

But the reporter persisted. In the current “war on terrorism,” isn’t there pressure to make such speech a crime?

For many civil libertarians, this isn’t an academic question. Consider, for example, the current controversy in Great Britain over the post-July 7 antiterrorism measures proposed by Prime Minister Tony Blair. Most of the package appears to have broad public support, including among British Muslims. But the proposal to criminalize not just direct incitement to terrorism, but also speech that the government views as “condoning or glorifying terrorism,” has some Brits understandably worried about the future of free speech.

What about in post-9/11 America? When does speech become a crime? We got one answer last April with the conviction of Ali al-Timimi, American biologist and Islamic scholar. The case was unusual and instructive because al-Timimi was prosecuted not for his deeds, but for his words. A jury found him guilty of encouraging a group of young men to join the Taliban in order to wage war against the United States.

Although the defense characterized the case against al-Timimi as an attack on free speech, the prosecution successfully argued that his speech crossed the line into criminal behavior. Referring to the fictional mob boss on “The Sopranos” TV show, Assistant U.S. Attorney Gordon Kromberg put it this way: “When Tony Soprano says, ‘Go whack that guy,’ it’s not protected speech.”

Pat Robertson may be guilty of rhetorical excess, but he didn’t direct or encourage someone to whack Chavez — he expressed his views about how the U.S. government should deal with the Venezuelan president. Though Robertson’s statement was tough talk, it was speech protected by the First Amendment. Exhorting a group of young men to join the Taliban to kill Americans shows criminal intent; suggesting that the U.S. government consider assassinating a foreign leader does not.

Moreover, Robertson’s statement wasn’t what the courts call a “true threat,” another form of speech without First Amendment protection. There was no real likelihood of violence against Chavez as a result of Robertson’s statement. And there is no evidence that Chavez was in actual fear of his life.

That brings me back to the reporter from Al Arabiya. Beyond the legal issues, she wanted to know if Americans were applying a “double standard” — one standard for Muslim leaders who oppose the U.S. government and another for Christian leaders who call for assassination of foreign heads of state.

That’s a question Robertson’s critics were quick to answer. “Fundamentalism is evil,” wrote Baptist pastor Michael Helms on EthicsDaily.com, “whether it comes from a Christian or from a Muslim.” Referring to Robertson’s statements about Chavez, Helms didn’t pull any punches: “Don’t think for one minute that a Muslim cannot recognize these words as fighting words — even words that are terroristic in nature. This is Christian Jihad! These words are no different than a radical Muslim like Osama bin Laden calling for the assassination of our president.”

At first Robertson responded to the uproar over his statement by blaming the press for “misinterpreting” him. “Take him out,” he explained on his television program, “can be a number of things, including kidnapping.” But when the press kept pointing out that his original remarks clearly included a call for assassination, Robertson decided to apologize. Sort of.

He apologized for calling for an assassination, but went on to justify what he said in the first place. Comparing Chavez to Saddam Hussein, he said again that it would be better to “wage war against one person” than a whole nation. In his defense, he invoked the German theologian Dietrich Bonhoeffer, who was executed by the Nazis for supporting a plot to assassinate Adolf Hitler. Chastened perhaps, but unrepentant.

How will this controversy affect Robertson’s credibility as a religious leader and political pundit? Only time will tell. Meanwhile, the brouhaha surrounding his words is another reminder of just how powerful words can be. Thanks to the First Amendment, Robertson won’t face a court of law. But he’s very much on trial in the court of public opinion. And that’s exactly how it should be in a nation committed to free speech.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: chaynes@freedomforum.org.


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