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| The "free speech zone" at the 2004 Democratic National Convention. (Photo credit: Wikipedia) |
Problems come up at the next stage, though. Suppose the speaker is going to say things that are going to anger a lot of listeners — whom we now can call counter demonstrators rather than attendees. We’re now outside of “content neutrality land.” But we have to move carefully here.
What speakers can and cannot say
Begin with two easy cases. If the speaker shouts to his supporters, “Beat that motherfucker up!” the police can move in and arrest him. He’s “inciting imminent lawless action,” as the First Amendment rule puts it. (A federal judge recently held that candidate Donald Trump might have done just that when he said at a rally, “Get ’em out of here” — referring to protesters.)
But if the speaker says only, “Beat up every black man you see after you leave this demonstration,” the police can’t do anything to him. There’s a threat of violence, but it’s not imminent. (The Supreme Court held that the government couldn’t punish a speaker who shouted to a crowd being pushed off the street by the police, “We’ll take the fucking street later,” because the word “later” took the case out of the imminence category.)
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