The 320-Pound Racist in the (Locker) Room

by Steve Royek
 
The professional football career of Richie Incognito is probably over and he faces a life of being known as the white player who harassed black teammate Jonathan Martin with threatening and racist texts and voice messages.

Could he, however, soon be trading in his orange and turquoise Miami Dolphins’ uniform for an orange prison jumpsuit?

Oliver Wendell Holmes, Jr.

If Oliver Wendell Holmes Jr. had his way, he just might.

Of all the names swirling around this sad, salacious scandal of language-based threats and violent rhetoric, one of the most interesting might be that of the former U.S. Supreme Court justice.  Holmes authored the landmark 1919 “Schenck v. United States” opinion that set legal guidelines

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for violent speech with the often-quoted “shouting fire in a theatre” analogy.  “Schenck” was the first high court ruling to carve out an exception to the once-absolute Freedom of Speech protection in the Bill of Rights.

Over the years, those exceptions have been crystalized into a three-part test of protected violent speech: Is there intent to commit a violent act, is that action imminent, and is there a strong likelihood the act will be carried out? All three of these tests appear to have been met in the Incognito affair, which opens up the player to criminal charges of terroristic threats.

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