“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
So wrote United States Supreme Court Justice Oliver Wendell Holmes in the 1919 case, Schenk vs. the United States.
On the night of November 24, Louis Head urged his fellow residents of Ferguson, Missouri, to “Burn this bitch down!”
By “bitch” he meant Ferguson itself.
Louis Head yells “Burn this bitch down!” and soon Ferguson erupts in flames.
The reason: A grand jury had just refused to indict Darren Wilson, the Ferguson police officer who had shot Head’s thuggish stepson, Michael Brown, last August.
Brown had just strong-armed a liquor store for some cigarillos before running into Wilson.
Wearing a white shirt emblazoned with “I Am Mike Brown” in black lettering, Head stood atop a platform in the midst of several hundred frenzied protesters.
“Burn this motherfucker down!” and “Burn this bitch down!” he screamed at least 10 times.
At one point he yelled for a microphone so he could reach an even larger audience.
But Benjamin Crump–an attorney for the Brown family–offered a ready excuse for Head’s incitement to arson.
After saying that Head’s remarks were “raw emotion” and “completely inappropriate,” Crump sought to excuse such criminal behavior:
“God forbid your child was killed …and then they get that just devastating announcement in the manner it was announced, and somebody put a camera in your face,” he said. “What would be your immediate reaction?”
For most people, their “immediate reaction” would not be to incite others to arson.
During the previous week, Michael Brown Sr., father of the slain thug, had recorded a public service announcement: “Destroying property is not the answer.”
So what would Justice Holmes think about Louis Head urging his fellow citizens to “burn this bitch down”?
No doubt Holmes would vote to lock him up.
Holmes did, in fact, cast just such a vote in one of the most famous cases in Supreme Court history: Schenk vs. the United States.
After America entered World War I in 1917, Congress passed the Espionage Act. The law said that, during wartime, obstructing the draft and inciting soldiers to disloyalty or disobedience were crimes.
Charles Schenck, opposing the war, mailed thousands of anti-war pamphlets to men who had been drafted into the armed forces.
The government charged Schenck with violating the Espionage Act.
Schenck’s attorney argued that the Espionage Act was unconstitutional. He said that it violated the First Amendment: “Congress shall make no law…abridging the freedom of speech.”
After Sehenk was convicted, his case was appealed to the Supreme Court–which unanimously upheld his conviction.
Holmes–who wrote the decision–said that it did not violate his First Amendment right to free speech.
Oliver Wendell Holmes
“In many places and in ordinary times,” wrote Holmes, Schenck would have had a right to say everything that he said in his pamphlets.
But Holmes added that how far a person’s freedom of speech extends depends on the circumstances.
It’s hard imagining Holmes extending a person’s freedom of speech to include inciting others to arson–and potential murder.
While making his incitements, Head wore a shirt, on whose back was emblazoned: “I AM MIKE BROWN.”
According to The Smoking Gun website:
“Head is an ex-convict whose rap sheet includes two felony narcotics convictions, according to state records.
“He pleaded guilty in 1997 to a marijuana distribution charge and was put in a shock incarceration program and placed on probation for five years. After violating probation, Head’s release was revoked and he was remanded to state prison.
“In mid-2003, Head was charged with narcotics trafficking, a felony count to which he later pleaded guilty. The St. Louis native was sentenced to seven years in prison. He was released in June 2008 after serving about five years in custody.”
Just before Michael Brown was shot by Darren Wilson, he had stolen a box of cigarellos from a local liquor store. As he walks out the door, he can be seen on video arrogantly pushing aside the store owner.
So–as Head’s shirt proclaimed–maybe he is another version of Mike Brown.
In the immediate aftermath of his remarks:
- At least 29 people were arrested and a dozen buildings damaged or destroyed.
- At least six businesses were set on fire.
- Looting was reported at multiple locations.
- Gunfire was reported throughout the night.
- At times, the bullets were so thick that firefighters were forced to evacuate the scenes of burning buildings.
- Owing to gunfire aimed at the sky, the Federal Aviation Administration diverted at least 10 flights from St. Louis.
It will be interesting to see if the St. Louis District Attorney’s Office has the courage to hold Louis Head accountable for inciting the arson, rioting and looting that ravaged Ferguson.