No First Amendment Right to Call for Obama’s Assassination

By Dr. Christopher J. Metzler

 

The 2008 Presidential election is testing how America deals with the enduring question of racism. With Barack Obama as the presumptive Democratic nominee, America is beginning to confront its racial pedigree. The results speak for themselves. One such test occurred recently when performance artist, Yazmany Arboleda, put race, penis envy and sexism on Front Street. The artist prepared for public showing an art exhibit in a vacant storefront on West 40th Street in Midtown Manhattan with the title, “The Assassination of Hillary Clinton/The Assassination of Barack Obama.”

The exhibit was shut down by law enforcement before it could go live. Arboleda protested, claiming that the exhibit was to be about “character assassination” of Obama and Clinton in the media. Arboleda also claimed “free speech.” The items in the Assassination exhibit included: hangman’s nooses, a picture of Obama and his daughters with the caption “nappy headed hoes,” masks of Obama with the title, “You too can be the next Negro President of the United States, a photograph of a large penis entitled, “once you go Barack…” and “Just Passing.” No such references were made to Clinton or her family in the collection. Despite representations to the contrary by the artist, this exhibit was intended to stoke racial animus, and did not raise a free speech issue and is further evidence that America is far from ‘Post Racial.”

There is no discernable connection between character assassination and nooses. When black men were being hung from trees it was not intended to assassinate their character. It was intended to assassinate them. Thus, it is beyond the pale to suggest that an exhibit ostensibly focused on character assassination would feature nooses. Are we to believe that the nooses are a metaphor for a sharp-tongued media who would engage in a “high-tech lynching of Obama?” To the contrary. The artist is using the nooses to advocate that Obama be hung by one. There is no other explanation.

The “Nappy Headed Hoe” card has already been played and there was nothing philosophical or metaphoric about it. Its meaning is clear: Black females, no matter their ages, are to be defined both by their hair styles and their propensity for unbridled and indiscriminate sex. Are we to believe that Don Imus and all those who use that moniker were doing so to engage in character assassination or to mark black women by gender, race and promiscuity? Moreover, if as the artist suggests, this exhibit is about the character assassination of Obama in the media, what does his daughters have to do with this?

The phallic symbol, its exaggerated size and the reference to going “Barack” all rely on the oft-held notion that black men are ruled by their penises, define masculinity by the size of their penises and that Obama is just another penis-centric black man. In fact, the artist it seems is paying homage to the pervasive stereotype from D.W. Griffith’s Birth of A Nation, Toni Morrison’s Sula and Richard Wright’s Native Son that black men are to be judged not by the size of their character, but by the size of their penises. The artist is sending a message to white men, that this election is not about substance; it is not about policy. It is not about the war in Iraq, high gas prices, economic devastation, and America’s image in the rest of the world. It is about penis envy.

The free speech argument cannot simply be evoked because the First Amendment allows us all to speak truth to power. The First Amendment states in relevant part, “Congress shall make no law …. prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” Thus, any restrictions on speech must be examined carefully. In this case, is the artist right when he says that he has the right to exhibit this collection, no matter how vile or offensive people find it? Is the first amendment absolute? Under what circumstances can the government restrict speech? By shutting down the exhibit, is the government enacting a “content- based” restriction since it does not like the topic of the speech.

A complete legal analysis of free speech is beyond the scope of this post. It is well settled that free speech is not absolute and that there can be restrictions on speech. In Chaplinsky v. State of New Hampshire, the Supreme Court of the United States held that “Certain welldefined and narrowly limited” categories of speech fall outside the bounds of constitutional protection. Thus, “the lewd and obscene, the profane, the libelous,” and (in this case) insulting or ‘fighting’ words neither contributed to the expression of ideas nor possessed any ‘social value’ in the search for truth.” Moreover, in Brandenburg v. Ohio the Court held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action.

In this case, given the history of racism in America, the history of the assassination of black men by lynching and the presence of race-based hate groups in America, some of whom have openly called for Obama’s assassination, there is no question that this exhibit is likely to incite imminent lawless action. While the artist has the right to express racial views, he does not have the right to incite violence and expect that the First Amendment would give him cover. This exhibit is ripe for the restrictions envisaged by Chaplinsky and Brandenburg.

Dr. Christopher J. Metzler, Esquire, is Associate Dean at Georgetown‘s School of Continuing Studies and the author of The Construction and Rearticulation of Race in a Post Racial America (Aberdeen University Press, 2008).

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One response to “No First Amendment Right to Call for Obama’s Assassination

  1. doidimaiscorporation

    Nice text. Free speech should be absolute in a perfect world, but unfortunately it’s not the case.

    I am a Brazilian and not in the American political game, but I do lean to the right and would vote McCain. Regardless, Obama will obviously suffer some lowly games and accusations.

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