Allowing the march, ignoring the danger


WHEN KHALID Muhammad, the deposed Nation of Islam hatchet man, applied for a permit to hold another 2,000-screwball march today, New York City Mayor Rudy Giuliani applied the "fool me once, shame on you/fool me twice, shame on me" adage.

No way was Muhammad getting another permit to march this year, Giuliani declared. Not after last year's debacle when Muhammad exhorted marchers to engage in violence against police officers if they moved in to lawfully disperse the rally that was supposed to end at 4 p.m. Last year, Giuliani called Muhammad's event a "hate march" but -- contrary to most media reports -- granted a permit for it.

Not so this year. Giuliani believed Muhammad was not entitled to a permit. Hizzonner had the rug snatched out from under him this year when a federal judge ruled that Muhammad could march on in the interests of free speech.

Who's on sounder legal grounds, Giuliani or Judge Denny Chin of U.S. District Court of Manhattan? My reading tells me that speech that fails either the "fighting words" test or the "clear and present danger" test is not covered by the First Amendment. Muhammad's rant at last year's march failed both tests.

Giuliani, in a New York Times article written by David Bartow, called Chin's decision a "distortion of reasoning" and "totally unwarranted." Michael Hess, a lawyer for New York City, said Muhammad's words last year were "fighting words" not protected by the First Amendment.

Chin disagreed, saying Muhammad's 1998 words weren't ones that would "incite an immediate breach of the peace." Oh no?

Where, exactly, has Chin been in the 1990s? "Fighting words" are Khalid Muhammad's specialty. He goes way beyond the "hateful, racist and offensive speech" Chin correctly said is permitted by the First Amendment. He talks in a way that would make St. Francis of Assisi want to strangle him.

New York Daily News reporter David Lefer recounted an incident in which several reporters interviewed Muhammad, who couldn't resist asking the lone black journalist present: "Are you a house nigger?"

Now it's bad enough being called the N-word by anyone. Adding "house" in front of it takes it to a dangerously volatile level. The black reporter kept his cool and was not confrontational. But another black person might just have easily opened up a giant, economy-sized can of butt-kick on Muhammad.

After the "house nigger" question, Muhammad couldn't resist asking the black reporter if he was married to a white woman, as if old Khalid would pass on slipping between the sheets with a sultry, blue-eyed blonde if the opportunity presented itself. But let's assume -- and we have to make a Brobdingnagian stretch of logic here -- that Chin is right about Muhammad's vitriol not being "fighting words." Do Baldy Muhammad's words constitute a "clear and present danger" to public peace?

Anyone who's ever said "You can't shout fire in a crowded theater" is paraphrasing a line from the Supreme Court case that established the "clear and present danger" criterion for speech that is not permitted under the First Amendment. In 1919, Charles Schenck, secretary general of the Socialist Party, appealed his conviction under the Espionage Act. His offense was distributing literature during World War I that all but urged young men to defy the draft. Schenck was convicted for impeding the war effort.

He appealed to the Supreme Court, claiming his First Amendment rights had been violated. Not so, the court ruled. What Schenck did would have been fine in peacetime. But the country was at war.

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic," wrote Justice Oliver Wendell Holmes in his opinion. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

When Khalid Muhammad takes to the podium, there's always a "clear and present danger" that he'll urge violence against police officers legally carrying out their duties. The mayor of New York recognized that. Too bad a federal judge couldn't.

Pub Date: 9/04/99

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