BY RAFFI KASSABIAN, ESQ.
On May 16, 2017, the world watched as Turkish President Recep Tayyip Erdogan’s bodyguards – who denied being part of the President’s security detail – attacked peaceful Americans who exercised their right to free speech on U.S. soil and denounced the Turkish Government’s oppressive policies. Consequently, several American men, women and elderly were beaten and suffered serious injuries as a result of peacefully assembling together and speaking out. Neither President Erdogan nor other Turkish officials apologized for the incident and, instead, blamed the demonstrators for provoking the response. This past week, the Washington D.C. Superior Court rubber stamped plea agreements that gave the perpetrators of these brutal attacks minimal sentences of one year and one day in prison, credit for time served and three years of supervised release and a nominal $100 fine. Even more troubling is the fact that the U.S. Attorney dropped charges against almost all of President Erdogan’s security team.
Aside from the obvious concern of a foreign government using violence against U.S. citizens on American soil, the legal aftermath of this light sentencing is dangerous. It sends a dangerous message to the Turkish authorities – that they can bring their aggressive tactics from Ankara to America and use force to trample on our First Amendment rights. Conversely, it sends the message to Americans to think twice before exercising their freedom to speak, thereby forcing self-censorship. This very idea of chilling speech undermines the bedrock principles of the First Amendment.
The First Amendment is the cornerstone of a democratic society, which prevents the U.S. government from making any law respecting an establishment of religion, prohibiting the free exercise of religion, or abridging the freedom of speech, the freedom of the press, or the right to peaceably assembly. Political speech and speech directed at criticizing government or public officials is at the core of the First Amendment and receives the utmost protection. The First Amendment, however, is not absolute– an individual cannot say anything at any time or at any place. There are categories of speech that are unprotected, including fighting words and inciteful speech.
Pursuant to the seminal California Supreme Court case Cohen v. California, fighting words are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace and which are directed to the person of the hearer so as to be regarded as a personal insult.
Further, pursuant to Brandenburg v. Ohio, inciteful speech is a communication that is directed or intended to incite or produce imminent lawless action and is likely to incite or produce such action. In other words, an individual cannot be punished for merely advocating ideas, he or she must advocate unlawful activity.
Contrary to the Turkish authorities’ position, the recorded footage from May 16 shows no sign of violent provocation from the peaceful protestors. What is clear, however, is that President Erdogan gave instructions to his personnel to violently attack the demonstrators. The protestors peacefully assembled and communicated their disagreement with Turkish government policy. Their speech was not directed at any one individual nor was the words they used of such a nature that would incite an immediate breach of the peace. The demonstrators were not carrying any weapons or firearms. Coincidentally (or not), two of the demonstrators that appeared most injured were the individuals who used the megaphone to amplify their message. President Erdogan’s bodyguards were not in immediate physical proximity to the protestors to feel a threat. The demonstrators’ message did not in and of itself incite violence or unlawful activity; it was protected speech.
The aftermath of the attack and the D.C. Superior Court’s ruling can have a deterring effect on future protests. The ruling may act as a prior restraint, censoring protesters from speaking out in fear of putting their lives on the line, regardless of whether they are in Washington D.C., Florida, Los Angeles or elsewhere in the United States. Or even more concerning, Turkish foreign agents may continue to hide under the guise of “being provoked” and will force the United States to issue a “heckler’s veto,” a government order curtailing peaceful demonstrators’ freedom of speech in order to prevent a violent reaction from the opposing party (i.e. the Turkish agents). Regardless of the aftermath, the D.C. Court’s ruling gives President Erdogan one more reason to continue to enforce his gag rule on the United States.
Raffi Kassabian is a professor of First Amendment Law at the University of California, Los Angeles (UCLA). He also serves on the Board of Directors of the Armenian National Committee of America-Western Region.