The First Amendment And Our God Given Right To Be Stupid

An article from the December 17 Cincinnati Enquirer essentially poses this dilemma. At what point does a Facebook poster lose his First Amendment free speech rights? In the wake of the Newtown Connecticut tragedy, an 18 year old Cincinnati man has been charged with “inducing panic” for posting this on his Facebook page: “Im so annoyed with dumb statuses about the Connecticut incident on my newsfeed that i think could shoot a few kids myself. . . .” Stupid? Check. Insensitive? Very. Criminal? Doubtful. The First Amendment permits stupid speech and insensitive speech and even speech that is violent. Where’s the line? Traditionally, it’s when the speech incites violence or constitutes a true threat. But that requires that the speech not only advocate violent action, but be delivered in a context where the speech is likely to result in imminent violence. So if I encourage an angry mob to take over some government building while the mob is assembled right outside, I can’t look to the First Amendment for help. But if I write a book where I talk more generally about the effectiveness of protests or even mob rule, I’m probably protected. The violence is just not imminent. This stupid and insensitive Facebook post is more like the latter than the former. I’d be surprised if any conviction holds up. There are many things our country needs to do in the wake of this latest tragedy. Convicting people for being stupid, however, is not one of them.