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Freedom of speech and the self-proclaimed “political activists”

First Amendment to the United States Constitution provides, in part, “Congress shall make no law … abridging the freedom of speech, or of the press…” This is one of the founding principles of the United States that Americans cherish. The First Amendment restricts the government from abridging speech of citizens. Any legislation that hinders speech is struck down unconstitutional. This freedom allows Americans to freely express their opinion on sensitive social issues, advocate their political opinion, promote their beliefs, religion, and criticize their government without fear of persecution and censorship. However, this freedom is not absolute.

Freedom of speech is regulated to protect other societal interests. The Supreme Court has interpreted the First Amendment to provide no protection to incitement, fighting words, obscenity, and child pornography, and only limited protection to defamation and commercial speech. The government may regulate even the fully protected forms of speeches by imposing reasonable time, place, and manner restrictions on how speech is made and communicated, provided the restrictions are content-neutral, narrowly tailored to serve a significant governmental interest, and leave open alternative avenues of expression. Content-based restrictions are also permissible if the restrictions pass strict scrutiny, the highest form of judicial review that requires the government to show a compelling interest and least restrictive means to achieve such interest.

One of the unprotected forms of speech is incitement of people to commit illegal or lawless activity. The Supreme Court in Schenck v. United States, 249 U.S. 47 (1919) held that “words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” In this decision, Justice Oliver Wendell Holmes famously wrote, “the most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater.”

The 1969 case, Brandenburg v. Ohio. 395 U.S. 444 (1969), further clarified the standard for determining when speech is unprotected as incitement. In reversing the conviction of Clarence Brandenburg, a KKK leader who held a rally and gave a speech targeting the government and people of color, the Supreme Court held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test in its decision to evaluate speech acts and held that freedom of speech and press do not permit a state to forbid advocacy of the use of force or of law violation except where such advocacy: (1) is directed to inciting or producing imminent lawless action, and (2) is likely to incite or produce such action.

The Supreme Court also held that “fighting words” are unprotected under the First Amendment. In the classic case, Chaplinsky v. New Hampshire. 315 U.S. 568 (1942), Chaplinsky insulted a police officer during an altercation: "You are a God-damned racketeer" and "a damned Fascist." Upholding Chaplinsky’s conviction, the Supreme Court ruled that these insults were “fighting words” likely to provoke an average person to retaliation, and thereby cause a breach of peace. The court also held that a state can use its police power to curb such expression in the interests of maintaining order and morality.

Ethiopian immigrants enjoy this freedom in America just like any other American citizen. They express their opinion on politics, religion and other social issues without fear. It is common to encounter meetings, rallies and demonstrations organized by the Ethiopian communities throughout America. These events peacefully make use of the freedom of speech to promote a cause, and, often times, to give voice to the voiceless. As the technology progresses and social media such as Facebook, YouTube, and Twitter become easily accessible, the exercise of this freedom is taking different shape. Some individuals livestream to thousands, or even millions of people having their voices heard instantly from wherever they are. These forums give these individuals powerful weapon to advocate their views, influence peoples’ mindset, and actually dictate the actions of many devoted followers. Sadly, many self-proclaimed “political activists” use their platform to promote hate, division, bigotry, and violence. Their speeches demean, offend and incite violence against specific group on the basis of protected attributes such as ethnicity, religion, gender and sexual orientation. These messages are instantly heard by many even in the most remote parts of Ethiopia. Their extremist ideologies and incitements are closely tied to the repeated violence that is rocking Ethiopia resulting in deaths, serious bodily injuries, and unprecedented displacements of innocent citizens.

Irrespective of the motives of these individuals, their form of speech is not protected and in no way tolerated. Often times these individuals invoke their constitutional freedom and try to use it as a shield to their actions, which is a clear illustration of their lack of understanding and complete ignorance to the intended purpose of the freedom and the responsibility and limitations that comes along with such freedom. There are clearly defined exceptions under the law to which these individuals can be held responsible, including the carefully carved out limitations discussed above, and any other regulatory restrictions under federal and state laws, as applicable. The same is true for those individuals living in Europe and Australia. Members of the Council of Europe are signatories to the European Convention on Human Rights (ECHR), which provides restrictions and penalties in the exercise of freedom of expression in the interests of national security, public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, and more. Additionally, there are more specific exceptions and restrictions to this freedom at the national level in the respective European Union member countries to which these individuals can be held responsible. 

With careful legal and factual analysis and meticulous documentation of indisputable and provable evidence, strong legal case can be made to hold these individuals responsible for their actions. Even if silencing and prosecuting these individuals runs into legal technicalities for any reason, the mere fact that actions are taken will have significant deterrent effect.

In addition to working towards bringing lawsuits and possible ban from social medias, well-documented case may be used to trigger specific inquiries into the immigration records of these individuals. The U.S. government asks, under penalty of perjury, questions pertaining to inciting violence and causing harm to individuals in the process of adjudicating immigration petitions. Specifically, a person (including spouse and children) is ineligible for permanent residency if he or she: (1) ever ordered, incited, called for, committed, assisted, helped with, or otherwise participated in acts involving torture or genocide; killing any person; intentionally and severely injuring any person, or (2) committed, threatened to commit, attempted to commit, conspired to commit, incited, endorsed, advocated, planned or prepared use of a weapon or explosive to harm another individual or cause substantial damage to property. Answering “No” to these questions amounts to giving U.S. government information or documentation that is false, fraudulent or misleading which will be a bar to earning permanent residency or citizenship, and enough to initiate revocation and denaturalization proceedings.

It is a high time for the Ethiopian government to come up with a task force devoted to building cases on these individuals. This task force, organized at the government level, will have leverage to capture the attention and cooperation from the United States government agencies such as the Department of State, the Justice Department, the Department of Homeland Security, Countering Violent Extremism Task Force (CVE), and the United States Citizenship and Immigration Services. The task force will also have leverage to initiate direct talk with the leaderships of the social media companies and request action. True, advocating for the Ethiopian government to work towards silencing and prosecuting individuals on the basis of their speech may not sound like a good idea; however, there is no justification to the form of speech these individuals are engaged in. Thus, government’s immediate action in this exceptional circumstance is critical to save Ethiopia from falling into an even darker path.

Ed.’s Note: Aiemero S. Leuleseged is a California licensed Attorney at ILBSG, LLP. He is admitted to practice law in Federal and California courts. Aiemero can be reached at [email protected].

Contributed by Aiemero S. Leuleseged