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.”