EDITORIAL
Even offensive speech is worth protecting

Free speech isn't always pleasant, in fact oftentimes it's downright detestable. Take, for example, the case of Reggie Upshaw who yelled "It's good that the World Trade Center was bombed. More cops and firemen should have died," to a crowd in Times Square four days after the 9-11 terrorist attacks.

Upshaw, 35, has been charged with inciting a crowd to riot. A Manhattan judge has ruled that the First Amendment does not protect Upshaw and he must stand trial on a misdemeanor charge.

A similar fate has been dealt to William Harvey, who was arrested near the ruins of the World Trade Center on Oct. 4 after saying the attacks were revenge for American treatment of Islamic nations.

In the Upshaw case, Judge William Harrington pointed out that the "The talismanic phrase 'freedom of speech' does not cloak all utterances in legality."

That's certainly true, but we're betting that — as heinous as they were — Upshaw's and Harvey's words were constitutionally protected. They just don't seem to fit any of the categories of expression that are not covered by the First Amendment.

Those categories include obscenity, defamation of character, expression intended to incite imminent lawless action (like yelling "fire" in a crowded theater), fighting words, unwarranted invasions of privacy, deceptive or misleading advertisements, clear and immediate threats to national security, copyright violations and expression on school grounds that cause disruption of school activities.

Now, for Mr. Upshaw or Mr. Harvey to incite a crowd to imminent lawless action, they would have had to goad people to take some sort of action. While both speakers were clearly expressing offensive views, they weren't asking the crowd to do anything in particular.

Their provocative words served to make themselves the target of violence and threats. In such a situation, police are bound under the First Amendment to protect the speaker, not arrest the speaker, according to UCLA law professor Eugene Volokh, an expert on free speech.

We in the United States are lucky to be exposed to an entire spectrum of viewpoints, and to be able to support or oppose those viewpoints without fear of retribution. We put up with offensive expression so that we too can take a stand when the time comes.

In that spirit, we hope freedom of speech prevails in the Upshaw and Harvey trials.