Dr. Larry Burriss: First Amendment Perfect Storm


     The phrase “perfect storm” is used almost everywhere these days. Any time two things come together, it seems they are a perfect storm.
     Well, a recent Supreme Court case may be such a perfect storm, as it involves both the First Amendment and controversial immigration policy.
     It seems a California man was arrested six years ago and was convicted on a number of charges, including providing information to illegal immigrants on how to evade Immigration and Naturalization Service rules.

     Thus the implication of free speech: Do the INS rules violate the First Amendment?
     Certainly simply talking to someone about immigration is safeguarded by the First Amendment. Talking to someone about illegal activities is protected, and even proposing illegal activity is probably immune. But promoting what is sometimes, referred to “imminent lawless action” is probably not a safe thing to do.

     But a quick question is, “How imminent does the lawless action have to be?” Well, advocating carrying out some illegal action in the vague, distant future doesn’t count.
     And, of course many, sometimes irrelevant, hypothetical situations were raised during the Court hearing late last month.  Could you, the justices were asked, be arrested if you told your illegal immigrant grandmother she could stay in your home a few days?
     Actually there are numerous forms of speech and press already prohibited, the First Amendment notwithstanding.
     We’ve already mentioned incitement to imminent lawless action. But it has to be all three: incitement, imminent, lawless.
     Perjury is prohibited form of speech.
     Using the postal service to carry indecent material is forbidden.
     Publishing the names of covert government agents could land you in prison.
     On the other side, what is almost universally protected, at least in the Untied States, is what the Supreme Court calls “debate on public policy.”
     In other words, the Court has distinguished between speech and action, particularly actions leading to lawless action.
     So the general rule seems to be, talk, debate and argue all you want. Yell and scream as necessary. Stomp your foot or pound on the desk. 
     Just don’t take an action that could actually harm your opponent.
     I’m Larry Burriss.

Larry Burriss, a professor in Middle Tennessee State University’s College of Mass Communication and president of the Tennessee Journalism Hall of Fame, welcomes the crowd before the induction ceremonies at the Tennessee Association of Broadcasters conference in Murfreesboro for the Tennessee Journalism Hall of Fame. (MTSU photo by Andrew Oppmann)