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July 16 2018 | 6:41pm AET

How Soft Sentence for Erdogan’s Goons Can Have Chilling Effect on Free Speech

Source: Asbarez | Tuesday, 10 April 2018
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A protester is beaten on May 16, 2017 by a pro-Erdogan goon

A protester is beaten on May 16, 2017 by a pro-Erdogan goon

BY RAFFI KASSABIAN, ESQ.

On May 16, 2017, the world watched as Turkish President Recep Tayyip Erdogan’s security team provoked an attack on peaceful U.S. citizens who exercised their right to free speech on U.S. soil and denounced the Turkish Government’s oppressive policies. Consequently, several American men, women and elderly were beaten and suffered serious injuries as a result of peacefully assembling together and speaking out. President Erdogan nor any other Turkish official apologized for the incident and, instead, blamed the demonstrators for provoking the response. This past week, the Washington D.C. Superior Court gave members of President Erdogan’s security team minimal sentences of one year and one day in prison, credit for time served and three years of supervised release and a nominal $100 fine.

Aside from the obvious concern of a foreign government using violence against U.S. citizens on American soil, the legal aftermath of the court’s decision is dangerous. The D.C. Superior Court’s soft sentencing sends a dangerous message to the Turkish authorities – that they can bring their aggressive tactics from Ankara to America and use force to trample on our First Amendment rights. Conversely, it sends the message to American citizens to think twice before exercising their freedom to speak, thereby forcing self-censorship. This very idea of chilling speech undermines the bedrock principles of the First Amendment.

The First Amendment is the cornerstone of a democratic society, which prevents the U.S. government from making any law respecting an establishment of religion, prohibiting the free exercise of religion, or abridging the freedom of speech, the freedom of the press, or the right to peaceably assembly. Political speech and speech directed at criticizing government or public officials is at the core of the First Amendment and receives the utmost protection. The First Amendment, however, is not absolute– an individual cannot say anything at any time or at any place. There are categories of speech that are unprotected, including fighting words and inciteful speech.

Pursuant to the seminal California Supreme Court case Cohen v. California, fighting words are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace and which are directed to the person of the hearer so as to be regarded as a personal insult.

Further, pursuant to Brandenburg v. Ohio, inciteful speech is a communication that is directed or intended to incite or produce imminent lawless action and is likely to incite or produce such action. In other words, an individual cannot be punished for merely advocating ideas, he or she must advocate unlawful activity.

Contrary to the Turkish authorities’ position, the recorded footage from May 16 shows no sign of violent provocation or aggression from the peaceful protestors. What is clear, however, is that President Erdogan gave explicit instructions for his security team to violently attack the demonstrators. The protestors peacefully assembled and communicated their disagreement with Turkish government policy. Their speech was not directed at any one security guard nor were the words they used of such a nature that it would incite an immediate breach of the peace. The demonstrators were not carrying any weapons or firearms. The security guards who attacked were not physically in near proximity to the protestors. The demonstrators’ message did not in and of itself incite violence or unlawful activity; it was protected speech.

The aftermath of the attack and the D.C. Superior Court’s ruling can have a deterring effect on future protests. The ruling may act as a prior restraint, censoring protestors from speaking out in fear of putting their lives on the line, regardless of whether they are in Washington D.C., Florida, Los Angeles or elsewhere in the United States. Or even more concerning, Turkish foreign agents may continue to hide under the guise of “being provoked” and will force the United States to issue a “heckler’s veto,” a government order curtailing peaceful demonstrators’ freedom of speech in order to prevent a violent reaction from the opposing party (i.e. the Turkish agents). Regardless of the aftermath, the D.C. Court’s ruling gives President Erdogan one more reason to continue to enforce his gag rule on the United States.

Raffi Kassabian is a professor of First Amendment Law at the University of California, Los Angeles (UCLA). He also serves on the Board of Directors of the Armenian National Committee of America-Western Region.