Court Tells Former NRA President The First Amendment Protects Far More Than Polite Speech

Free Speech

from the what's-this-about-the-2nd-Amendment-protecting-the-First? dept

Here in America, unpleasant speech is still protected speech, something a federal court recently reminded a plaintiff. (h/t Adam Steinbaugh)

The person bringing the lawsuit is Marion Hammer, the first female president of the National Rifle Association. A frequent target of online criticism, hate mail, and harassment, Hammer decided to sue a handful of her many, many detractors. The lawsuit [PDF] alleges an ongoing campaign of harassment and cyberstalking engaged in by the four defendants.

The suit was filed in July. Three of the four defendants failed to respond. The fourth, Lawrence T. “LOL” Sorensen, responded with a motion to dismiss for failure to state a claim. Sorensen argued his communications with Hammer were protected speech. The judge agrees. In Robert Hinkle’s short decision [PDF], the judge reminds Hammer that the First Amendment protects a lot of speech people don’t like, even when it’s targeting them.

Mr. Sorensen sent Ms. Hammer two emails, each transmitting one or more photographs showing injuries from gunshot wounds. Sending these unsolicited to anyone, even a public figure who advocates gun rights, was inappropriate, indeed disgusting. As Ms. Hammer correctly notes in response to the motion to dismiss, “there are limits on how people can treat those with whom they disagree.” Or at least on how people should treat those with whom they disagree. Emails like these should not be sent in a civilized society.

That does not mean, though, that emails like these can be made criminal or even tortious. Tolerating incivility, at least to some extent, is a price a nation pays for freedom. There is no clear line between incivility, on the one hand, and effective advocacy, on the other. Turning loose a legislature, judge, or jury to ferret out incivility would deter and even sometimes punish the robust public discourse that is essential to freedom—the public discourse whose protection is the main object of the First Amendment.

The judge notes that simply finding someone else’s behavior unseemly isn’t a federal case, especially not when First Amendment rights are on the line. He notes Sorensen never threatened Marion Hammer “explicitly or implicitly” when he sent her photos of gunshot wounds. All the email said was “Thought you should see a few photos of handiwork of the assault rifles you support.” The second was along the same line, noting that the attached photo of a dead John F. Kennedy showed the damage done by an “outdated military rifle” and that today’s rifles were far more powerful and “far more destructive.”

The court reminds Hammer the First Amendment doesn’t work the way she wants it to work. If the First Amendment only protected polite discourse, it would be useless. Not only that, but the sending of gunshot wound photos to an advocate of gun ownership is not harassment or cyberstalking. It’s a discussion of a matter of public interest, even if the discussion is largely one-sided.

The photographs were germane to the policy debate that Ms. Hammer regularly participated in and Mr. Sorensen apparently sought to join. Sending these photographs, at least in these circumstances, was not tortious. And treating them as tortious would violate the First Amendment.

As Adam Steinbaugh notes in his follow-up tweet, it would be nice to have a federal anti-SLAPP law in place to deter lawsuits like these. If Hammer felt she may have to pay Sorensen’s legal fees for bringing a misguided lawsuit against him, she may have decided to leave him out of it. Now, Sorensen’s out time and money for doing nothing more than engaging in protected speech.

Filed Under: 1st amendment, 2nd amendment lawrence sorensen, anti-slapp, first amendment, free speech, marion hammer
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