On Sunday night, two gunmen opened fire at an art show in the small town of Garland, Texas. Armed with assault rifles and wearing body armor when they arrived at the Curtis Culwell Center, a local arena, the gunmen wounded an unarmed security guard before being fatally shot by a local police officer.
This was no random small-town shooting. The Culwell Center was hosting the Muhammad Art Exhibit and Cartoon Contest, a “provocative contest for Prophet Muhammad cartoons,” according to the Associated Press. The event was organized by Pam Geller, the outspoken head of the the American Freedom Defense Initiative, which the Southern Poverty Law Center defines as an anti-Muslim hate group. Those infamous bus ads proclaiming “Jew Hatred: It’s in the Quran” you might have spotted around your city? Those are AFDI joints—and they're protected under the First Amendment.
The shooting over a Muhammad cartoon contest has immediately drawn comparisons to January's slaughter of cartoonists at the Paris offices of satirical weekly Charlie Hebdo. Indeed, Geller planned the Texas exhibit in the aftermath of the Paris massacre. “They’re just cartoons. We’re holding this exhibit and cartoon contest to show how insane the world has become,” Geller said in February. “If we can’t stand up for the freedom of speech, we will lose it—and with it, free society.”
The two tragedies raise similar questions related to free speech, especially when it comes to religious iconography considered offensive by millions of people worldwide.
While the two tragedies are markedly different—Hebdo is a newspaper with a unique relationship with satire, while Geller’s group is vocally and explicitly dedicated to denying Muslims the freedoms they ostensibly want to protect—they raise similar questions related to free speech, especially when it comes to religious iconography considered offensive by millions of people worldwide. But while any act of violence against innocent civilians is deplorable, the nature of Geller’s cartoon contest in Garland may actually exempt her from the free speech protections she so vocally embraces.
Let’s back up. “Free speech,” as legally circumscribed by the First Amendment, protects us against government interference. Not engagements between private citizens. But free speech protections begin to weaken in the instances of inciting violence. In 1919’s Schenck v. United States, Oliver Wendell Holmes Jr. birthed the popular metaphor of “shouting fire in a crowded theater”—that is, speech made to incite panic. Brandenberg v. Ohio in 1969 gave a more clinical legal standard of incitement as focused on “imminent lawless action.” It’s at these flashpoints that a person’s claim to “free speech” falls on deaf ears.
But most common law definitions of unprotected speech outside of the political action in Schenk and Brandenberg point to the doctrine of “fighting words,” which the Supreme Court defined in 1942’s Chaplinsky v. New Hampshire as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Words meant to deliberately provoke violence or a confrontation don’t enjoy the same protections as political speech. They are the legal equivalent of a taunt.
This is the free speech question at the heart of the Garland shooting: Despite free speech protections afforded to past AFDI campaigns, does Geller’s provocative Muhammad cartoon contest, literally a “come at me, bro” to the global Muslim community in the wake of the Charlie Hebdo massacre, constitute an example of “fighting words” defined by Chaplinsky v. New Hampshire?
That’s the sense many critics get from Geller, who casts the majority of Muslims as jihadists who “mean to bring this war to our streets.” The specter of violence was certainly there from the beginning; Geller and her associates shelled out an extra $10,000 on added security, knowing the risks that the event brought. As Aaron Bady points out at the New Inquiry, actual free expression is really just a convenient narrative for Geller’s organization:
...working to frame the existence of a certain class of person as a fundamental threat to the nation—literally, attempting to ban them from public space because they are intrinsically foreign—and to mark anything positive said about Islam as an obscenity and an attack on free speech.
Frankly, it's unlikely Geller would ever face prosecution for incitement. The legal precedent of “fighting words” has always been controversial, and its legal definition has narrowed since 1942, most recently in 2011’s Snyder v Phelps, where Justice Samuel Alito’s definition of the Westboro Baptist Church’s activities was relegated to dissent status. Decades of court decisions have established "fighting words" and "incitement" as legally distinct. As Ken White points out, the standard for fighting words "isn't whether the words contain social commentary; it's whether they are likely to provoke an average person to immediate face-to-face violence." This is why acts like flag burning aren't illegal under the fighting words doctrine.*
Even if Geller's exhibit did constitute speech that doesn't enjoy the same protections under the First Amendment, this certainly doesn’t excuse an attack on innocent civilians. As Dr. Nasim Rehmatullah, national vice president of Ahmadiyya Muslim Community, said in a post-shooting statement: "Violence is never an acceptable response to hate speech, no matter how inflammatory and uncivilized that speech is."
*UPDATE — May 05, 2015: We've clarified the changing role of "fighting words" doctrine by incorporating analysis from Ken White.