Jay Severin and Hal Turner are radio talk show hosts who frequently engage in hate speech, and as a result each of them is now suffering some consequences. According to an article by David Abel of the Boston Globe, Severin has been indefinitely suspended by his employer, and Daniela Altimari of the Hartford Courant reports that Turner is facing criminal charges. Do the actions against these radio personalities violate their rights under the First Amendment?
Let's start by describing what Severin and Turner actually said and wrote. Severin's specialty seems to be insulting people (according to him Al Gore is "Al Whore," Hillary Clinton is "a lying bitch," and Ted Kennedy is "a fat piece of lying garbage."). Recently Severin has targeted Mexicans, sharing his views about their appearance, hygiene, work ethic, health, tendency to obey the law, and general level of cultural advancement. According to Abel, Severin made the following statements:
"So now, in addition to venereal disease and the other leading exports of Mexico – women with mustaches and VD – now we have swine flu."
[He described Mexicans as] "the world's lowest of primitives."
"When we are the magnet for primitives around the world – and it's not the primitives' fault by the way, I'm not blaming them for being primitives – I'm merely observing they're primitive."
"It's millions of leeches from a primitive country come here to leech off you and, with it, they are ruining the schools, the hospitals, and a lot of life in America."
"We should be, if anything, surprised that Mexico has not visited upon us poxes of more various and serious types already, considering the number of criminaliens already here."
Severin was placed on indefinite suspension by his employer WTTK of Boston.
Hal Turner broadcasts over internet radio from his home in New Jersey, but he was arrested by Connecticut officials not for what he said on his program but for statements that he posted on the internet. According to Altimari, Turner allegedly blogged threats against two Connecticut legislators and a member of the State Ethics Office. Specifically, Turner wrote:
"It is our intent to foment direct action against these individuals personally. … These beastly government officials should be made an example of as a warning to others in government: Obey the Constitution or die."
Turner also stated that he was going to post the home addresses of the three officials in question. Referring to police and prosecutors who might stand in the way of this plan, Turner wrote:
"I suspect we have enough bullets to put them down too."
According to an article published yesterday by Pat Eaton-Robb of the Associated Press, Turner has now surrendered to Connecticut officials. Turner claims that his statements are protected by the First Amendment. He reportedly said that his comments were no more than
"crude political hyperbole uttered in a context which did not lend itself to imminent lawlessness."
Turner is evidently hoping to rely upon the case of Watts v. United States (1969) in which the defendant said in a small political gathering opposed to the Vietnam War that if he were ever inducted into the army (an event that was unlikely to occur),
"the first man I want to get in my sights is L. B. J."
It is a federal crime to threaten the life of the President, and Watts was convicted of this offense. The Supreme Court reversed his conviction on the ground that his statement was not a true threat but only "crude … political hyperbole" because of the context of the speech and its highly conditional nature. The Court stated:
[T]he statute initially requires the Government to prove a true "threat." We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was "a kind of very crude offensive method of stating a political opposition to the President." Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Severin's hateful remarks are contemptible but are fully protected by the First Amendment. His problem is that it was not the government but rather his employer who took action against him. As a private actor, the radio station is not bound by the First Amendment – the Constitution does not prohibit individuals or private companies from interfering with other people's freedom of expression, and in any event the radio station has the same rights under the First Amendment as Severin does. If they don't want hatemongerers like Severin representing them they don't have to give them a microphone.
Turner is in a stickier situation. Unlike the case with Severin, the First Amendment applies because Turner is being prosecuted by the government for what he wrote, but he had better hope that the courts agree with him that he was speaking metaphorically like Watts was when he said that the targets of his wrath should die. I don't like Turner's chances, though. He expressly stated "It is our intent to foment action against these individuals personally." Now he will have to convince a jury that this was not his intent.
{ 2 comments… read them below or add one }
These two are almost as bad as Reverend Wright and David Letterman.
Thanks Professor. It would appear that Turner's goose is self-cooked…having made the mistake of stating his "intent."
But this is America….where everything is a gamble.