If the case of Melissa Click, an assistant professor of communication at the University of Missouri at Columbia, were a law professor’s hypothetical, it’d be a great one.
I could show my students the viral video of Click confronting the student journalist Mark Schierbecker during a protest on November 9. Schierbecker was videoing a confrontation between student protesters and a photographer from Mizzou’s student newspaper. The scene unfolded on the university’s quad—public property and what free-speech lawyers call a “public forum.” But Click confronted Schierbecker and told him, “You need to get out.”
Schierbecker responded that he had a right to be present and record images. Click raised her voice and said, “Hey, who wants to help me get this reporter out of here? I need some muscle over here.”
Here’s the exam question: Did Click “incite” violence under the Supreme Court’s famous Brandenburg rule that the government does not violate the First Amendment by punishing speech “directed to inciting or producing imminent lawless action and ... likely to incite or produce such action”? By urging listeners to “get this reporter out of here” with “muscle” (mercifully no one responded), was she intentionally tipping the situation toward violence? That’s not protected speech.
Here’s a second question: Assuming that violence was not intended or likely, did Click utter a “true threat,” another category of speech that the First Amendment doesn’t protect? A “true threat” doesn’t have to be a “real threat”—that is, the speaker need not intend to or be able to carry out the threat. It’s enough if the language is intended to convince others that the speaker intends to. Was she trying to scare Schierbecker into going away? That, too, would not be protected speech.
Both of these are close questions. At the very least, Click walked up to the line that separates free speech from verbal crime.
Here’s a third one. As shown on the video, Click also reached out and pushed or slapped Schierbecker’s video camera. When she did that, did she “knowingly cause physical contact with another person knowing the other person [would] regard the contact as offensive or provocative”? If so, she could be found guilty under Missouri law of “assault in the third degree.” Because the action did not risk injury or death to another person, it is a Class C misdemeanor, and could bring a sentence of up to 15 days in jail.
The third question would make a great criminal-law question, but it’s not hypothetical. On Monday, Columbia’s town prosecutor Stephen Richey charged Click with assault. On Tuesday, she pleaded not guilty.
Click is now globally infamous because of Schierbecker’s video. She has been attacked in media outlets ranging from the Daily Caller to The Washington Post. She has already resigned her courtesy title as “assistant professor of journalism.” She is currently up for tenure in Mizzou’s communication department, and my academic nose suggests that she’s unlikely to get it. On Tuesday afternoon, the university’s Board of Curators was meeting to consider an unspecified “action item”—one that may take the decision out of the faculty’s hands. One hundred members of the Missouri legislature have signed a letter to university officials demanding that she be fired immediately. A petition entitled “Fire Professor Melissa Click” has attracted nearly 3,500 signatures on change.org. One Missouri lawmaker has even introduced a bill to require all Mizzou students to take a three-hour course in free speech.
In other words, things are pretty heated in Missouri. When the dialogue reaches the idea of government-prescribed mandatory ideological free-speech training, it may be a sign that we are not defining our terms as precisely as we should. And the rush to make a public sacrifice of Click ought to give everyone pause—not for her sake but for the sake of free speech itself.
One of the most famous dissents in American constitutional law was written by Oliver Wendell Holmes, Jr. in a 1919 case called United States v. Abrams. The defendants in that case had printed leaflets denouncing U.S. intervention in Russia, and then thrown the papers from a high window. They were charged with conspiring to obstruct the U.S. war effort against Germany. The Court’s majority upheld the convictions, citing an earlier Holmes opinion, United States v. Schenck, in which he brushed aside First Amendment concerns with his famous aphorism, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
But the Abrams decision drew a dissent—from Oliver Wendell Holmes, Jr. The Schenck case, he said, had concerned a speaker who had intended to obstruct the war against Germany. The Abrams defendants were trying to obstruct the intervention in Russia—and the U.S. was not at war with Russia. So they hadn’t violated the statute.
Holmes admitted that argument might not be entirely convincing. So he added some famous lines: “Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper,” he wrote—meaning that the violation of the statute, if it had occurred, was so minor (“a silly leaflet by an unknown man”) as to be almost undetectable—“the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges, but for the creed that they avow.”
Is Melissa Click’s shove or slap enough to turn the color of legal litmus paper? That’s not an exam question any more; it’s for a court to decide. But prosecutors pick and choose cases, and I am sure not every poke or shove in Columbia gets taken to criminal court. Did the decision to charge her reflect the hue and cry against her throughout Missouri and much of the world? Will she get a fair trial and—if it comes to that—a just sentence in the current atmosphere?
Melissa Click is nobody’s martyr and she shouldn’t be made one. The First Amendment isn’t a charter to persecute those who offend against it; properly viewed, it protects people with deeply offensive beliefs and unbecoming conduct, people who don’t believe in or practice free speech—Nazis and Communists who seek to destroy freedom, religious extremists who disrupt funerals and fairs, video makers who sell videos of animal cruelty, barroom fraudsters who claim to have military decorations. No matter how illiberal Click’s behavior, she doesn’t forfeit her free-speech rights. And in this context, those rights protect not her slap, or even her possibly proscribable speech, but her right not to be charged with a crime, or sentenced to jail, because of popular distaste for her point of view.
Last week, the university’s administration appointed an Ad Hoc Joint Committee on Protests, Public Spaces, Free Speech and the Press to study the campus atmosphere and establish standards for the observance of free speech and freedom of the press. Discussion and study seem like a better way to vindicate free speech than police and handcuffs. The criminal-justice system is a very blunt instrument with which to vindicate freedom.