Philadelphia Mayor Suggests Magazine Article on Race Relations Isn’t Protected by the First Amendment

Philadelphia magazine published an article called Being White in Philly, with the subtitle, “Whites, race, class, and the things that never get said.” Apparently the Mayor of Philadelphia, Michael Nutter, thinks there’s not even a constitutional right to say those things; in a letter to the Philadelphia Human Relations Commission, the mayor argues,

While I fully recognize that constitutional protections afforded the press are intended to protect the media from censorship by the government, the First Amendment, like other constitutional rights, is not an unfettered right, and notwithstanding the First Amendment, a publisher has a duty to the public to exercise its role in a responsible way. I ask the Commission to evaluate whether the “speech” employed in this essay is not the reckless equivalent of “shouting ‘fire!’ in a crowded theater,” its prejudiced, fact-challenged generalizations an incitement to extreme reaction.

The implication — which I think is very strong — that the “speech” is indeed unprotected by the First Amendment under the “incitement” exception is absolutely wrong: Under Brandenburg v. Ohio and Hess v. Indiana, the speech in the article is clearly protected. (It’s true that a narrow range of speech that is intended and likely to produce imminent illegal conduct, with imminent meaning within hours or at most a few days, rather than at some unspecified future time, is unprotected, but the magazine article definitely does not fit within that.) And it’s quite troubling, I think, when a mayor (who has power over, among others, the Police Department) suggests that the expression of opinions that he disapproves of about race is constitutionally unprotected.

The specific call in the mayor’s letter, which is for the Commission to “conduct an inquiry into the state of racial issues, biases, and attitudes within and among the many communities and neighborhoods in the City of Philadelphia,” and to “consider specifically whether Philadelphia Magazine and the writer, Bob Huber are appropriate for rebuke by the Commission,” is not as troubling — both the mayor and the Commission have the right to express their own views, and indeed it is commonly argued that the proper alternative to suppression of speech is counterspeech. But the Mayor’s rationale wasn’t just, “this speech is constitutionally protected but so is our response.” Rather, the Mayor expressly suggested that the speech in the article was unprotected, and therefore punishable outright and not just worthy of public disapproval.

Thanks to John Bennett for the pointer.

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