Tim Schilke apparently thinks that the law ought to censor speech such as criticism of the guy who sent an insulting e-mail to a soldier in Iraq. As you will recall, the soldier had inquired about purchasing some mats from a discount website. An employee of the site sent an e-mail telling him that "We do not ship to APO addresses, and even if we did, we would NEVER ship to Iraq. If you were sensible, you and your troops would pull out of Iraq." This response was widely criticized in the press and apparently some people left profane and insulting messages on the guy's answering machine. Schilke writes:
This brings me back to the free speech question of the week. Were the multiple "imminent" and "lawless actions" against the West Allis family in part "incited" by the free speech actions of employees of Journal Broadcast Group? It’s difficult to prove, but it’s a close call.
Actually, its not. As Schilke acknowledges, in circumstances relevant to this question, the First Amendment prohibits the punishment of speech unless 1) it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action."
Brandenburg v. Ohio, 395 U.S. 444(1969)
If our talk show hosts had called upon the masses to rise up and stomp the poor fellow, he'd have a point. But criticizing someone - even harshly - does not qualify. Even urging people to let someone - say a politician or a business - know that you disapprove of some action they have taken does not qualify.
If people call President Bush a "liar" and "warmonger" and a "fascist" who is "ruining the country" some nut might take a shot at him. If the media criticizes a business for, say, mistreating African-American customers, some misguided soul may torch its building. This does not mean that the speech was directed to incite imminent violence or even that it was likely to do so.
Tim Schilke may think that the response to the offending e-mail was "hyperpatriotic" and overblown. I may think that references to conservatives as "bigots" or "homophobes" is hateful. But we don't get to be the arbiters of when, how and what people say. The Brandenburg exception is exceedingly narrow and properly so.
Tim thinks that "this local situation may form a good case study for future textbooks." No, actually, it won't.