“THE most stringent protection of free speech would not protect a man falsely shouting ‘fire’ in a theatre,” causing a stampede and possible deaths. So held the US Supreme Court in a unanimous ruling relating to an Espionage Act violation (Schenck v. US, 240 US 47-1919). This case appropriately places a cap on free speech where it’s unrestrained exercise would hurt the common good.
Thus, US Army psychologist, Major Nadal Hasan, shrieking extremist Muslim slogans, went on a rampage shooting and killing several soldiers at Ft. Hood, Texas on November 5, 2009, before being felled by base police bullets. He had a history of expressing extremist views and his hatred for Western society, but many of his superior officers shrugged them off, believing it to be “politically incorrect” or in violation of his 1st Amendment freedom of speech and religion rights to muzzle or discipline him - a huge mistake.
And on Saturday, January 8, 2011, 22 year old Jared Lee Loughton shot and killed 6 people and wounded 13 others, including Congresswoman Gabrielle Giffords at her public forum at a Tucson shopping center. Among the dead were a federal judge, a nine year old girl and a Congressional aide. Shot in the head at point blank range, Ms. Giffords is fighting for her life at Tucson’s University Medical with surprisingly promising prospects for recovery.
But, as in Major Hasan’s case, there were clear, abundant and convincing tell-tale signs of a potentially explosive personality in Loughton’s case: kicked out of college and high school, barred from re-entering without a psychological clearance, rejected by the Army, fired from his first job, arrested on drug charges, posting internet messages that were hostile and incoherent, rambling about his hatred for government, his college, the Constitution, illiteracy and “lucid dreaming.” Indeed, the records, interviews with teachers, friends, police, etc., depicted a ticking time bomb, a young man in a downward spiral.
And in writings found at his home were disturbing memos: “I planned ahead,’ “assassination,” “die, bitch,” and “Giffords,” clearly signaling an intent to commit the premeditated murder of Congresswoman Giffords.
Those who knew Loughton best - his parents, teachers, school administrators, police, close friends, I submit, had the duty and responsibility to act beforehand, to bring his bizarre behavior, utterings and dark messages to the authorities who could have brought about his compulsory examination and appropriate detention. But given the present climate of reluctance to abridge one’s Constitutional rights of free speech and religion, and to avoid any charge of being “politically incorrect,” school officials, police and the appropriate authorities have been gun shy about taking the measures that could have prevented the kind of tragedies that occurred in Tucson and Fort Hood.
In taking the bold and necessary steps to prevent such tragedies, there must be less eagerness to be “politically correct” or to dogmatically accept the seemingly “immutable” rights of free speech and religion. In all major issues of national or societal interests, there must be a “balancing of the equities,” with the scales dipping in favor the best interests of society as a whole over individuals’ rights and interests.
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Manibog & Manibog Law offices are regular columnists offering legal tips and perspectives in high profile legal cases and events. Monty is a former mayor of Monterey Park and Darren is former president of the Phil-Am Bar Association.
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