In 1966, a boycott of white merchants in Claiborne County, Miss., was launched at a meeting of a local branch of the National Association for the Advancement of Colored People (NAACP) attended by several hundred black persons. The purpose of the boycott was to secure compliance by both civic and business leaders with a lengthy list of demands for equality and racial justice. The boycott was largely supported by speeches encouraging nonparticipants to join the common cause and by nonviolent picketing, but some acts and threats of violence did occur. Charles Evers, the field secretary of the NAACP in Mississippi and a principal organizer of the boycott, was quoted as saying, “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”In 1969, local white merchants filed suit against the boycotters (the NAACP, the Mississippi Action for Progress, and a number of individuals who had participated in the boycott, including Charles Evers) over threats of violence toward those who refused to boycott. Initially, local courts and the Mississippi Supreme Court ruled in favor of the local merchants, claiming threats of violence toward boycott nonparticipants by boycotters caused undue economic harm to the white merchants. The Supreme Court reversed that decision with a landmark ruling in 1982. The Court found that no court could determine if merchants were losing sales expressly because of the threats of violence toward nonparticipants. Below is an account of the legal proceedings by Prof. Eugene Volokh of UCLA:
In fact, twenty years ago, the U.S. Supreme Court confronted a case, NAACP v. Claiborne Hardware, involving this very question. In Claiborne, civil rights leader Charles Evers helped organize a black boycott of white stores, aimed at securing equal treatment for black Claiborne County citizens; but while the boycott was mostly peaceful, it was not entirely so.
There was some violence: shots were fired through boycott violators’ windows, violators were beaten up, and others had their property vandalized. There was public disclosure of boycott violators; “store-watchers” recorded which blacks shopped at white-owned stores, and published the names in a local newspaper and announced them in church.
And there was speech that, especially set against the backdrop of violence, was threatening: Evers said that boycott violators would be “disciplined,” that the Sheriff couldn’t sleep with boycott violators at night, and allegedly that “if we catch any of you going in any of them racist stores, we’re gonna break your damn neck.” But despite this, the Supreme Court unanimously held that Evers’ speech was constitutionally protected.
The Ninth Circuit was thus faced with a controlling precedent. Both the Nuremberg Files and Evers’ speech praised violence and could be seen as threatening, especially given the context of violence by others. The Web site included people’s addresses, but in the black community in Claiborne County, where many people knew each other, listing boycott violators’ names was probably tantamount to including the addresses. And if anything, Evers’ speech was somewhat more explicitly threatening than the Nuremberg Files Web site.
The speakers’ ideology was different — but that’s one distinction the First Amendment prohibits the government from drawing. Pro-civil-rights violence is just as punishable as pro-life violence; but pro-life speech must be just as protected as pro-civil-rights speech.
So the Ninth Circuit had to decide the case in favor of the speakers; and this is one of the great advantages of our precedent-based legal system. What’s sauce for the goose is sauce for the gander, and this helps keep judges honest: They know the rules they create, whether speech-protective or speech-restrictive, will ultimately cover both those with whose message the judges sympathize and those whose message they loathe. Protection for civil rights protesters led to protection for pro-life protesters; likewise, the Ninth Circuit decision here will eventually be cited to protect still other political movements.
But the tougher questions are the ones the Ninth Circuit, which was bound by the Supreme Court’s decision, couldn’t fully confront: Was Claiborne right? Should Evers’ talk of “necks being broken” have been protected, or should the law protect victims of threatening speech more, and speakers less?
This is a genuinely difficult issue, but I think Claiborne got it basically right, because the alternative is so restrictive. Whenever words are said against a backdrop of violence, listeners can plausibly read an element of threat into the statements. Harshly condemning strikebreakers or polluters a few months after the shooting of a strikebreaker or an eco-terrorist attack may be reasonably seen by many as an implied threat.
But such statements are an inevitable part of political debate, especially when the speakers see the issue as literally a matter of life and death. It’s important for us to hear this speech, partly because some aspects of it may be right, and partly because the very fact that people feel so strongly about an issue is itself important matter to know. If a jury’s finding that the speech is implicitly threatening can lead to a $100 million verdict, many people (except perhaps the most irresponsible) would be unwilling to express their honest views on such matters. We need to punish the violence, but protect the speech.
There are, of course, necessary limits on all speech, and courts recognize that some threats are constitutionally unprotected. As the Ninth Circuit pointed out, explicit threats that the speaker or his associates will perform violent acts are indeed punishable.
But as with all First Amendment exceptions, it’s important to keep this one narrowly limited. When statements made in public discourse contain no explicit threat of violence — or merely warn about the risk of violence by unrelated third parties — the Ninth Circuit held they must be protected. A harsh rule, but necessary, not just for the protection of pro-life speech but of speech on all topics that make people’s blood run hot.
NAACP v. CLAIBORNE HARDWARE CO., 458 U.S. 886 (1982) http://supreme.justia.com/us/458/886/
“Menacing Speech, Today and During the Civil Rights Movement.” Prof. Eugene Volokh, UCLA School of Law. Published in Wall Street Journal, April 3, 2001. http://www.law.ucla.edu/volokh/nurember.htm