The Witches Who Cursed Brett Kavanaugh Were Exercising Free Speech
The First Amendment ensures your right to curse.
They placed poppet dolls pinned with the faces of Kavanaugh and President Donald Trump on an altar, burned penis-shaped candles affixed with nails, and recited the cursed-filled Psalm 109. Outside, Catholic protesters shouted Bible verses. It was all perfectly legal and indisputably American.
In the United States putting a hex on someone is your constitutional right, despite what your local exorcist might tell you. Prior to the witch’s ceremony, Father Gary Thomas, the exorcist for the Diocese of San Jose, told the National Catholic Register that hexing “is a conjuring of evil — not about free speech” and insisted that “conjuring up personified evil does not fall under free speech.”
He also said he would hold Mass for Kavanaugh, in response to the witch’s hex. (A spokesperson for the Diocese of San Jose confirmed with Inverse that “Father Gary Thomas did nothing more than include Justice Kavanaugh’s name in the Prayer of the Faithful, which is a list of several prayer intentions, during a regularly scheduled Mass on Thursday and Saturday.”)
But the Diocese of San Jose did not respond to the question of whether or not the Church believes, like Fr. Thomas, that hexes are not an example of free speech. Luckily, five distinguished professors of law did, and it looks like while Thomas is a Vatican-approved demon exorciser, he’s off when it comes to the First Amendment.
Timothy Zick, J.D. is the John Marshall Professor of Government and Citizenship at William & Mary Law School. He says that hexes are protected speech because merely wishing or praying with others that harm will come to a particular person is a form of free speech. The First Amendment doesn’t protect advocacy of unlawful activity that’s intended to and likely will produce harm and it doesn’t protect the serious expression of an intent to inflict physical harm.
“But hexes and other ‘conjurings’ do not fall into these categories,” Zick tells Inverse. “They are more akin to thinking evil thoughts, and the government would violate the First Amendment if it sought to restrict or punish their expression.”
“The placing of a hex on a public figure is free speech”
James Weinstein, J.D. the Dan Cracchiolo Chair in Constitutional Law at Arizona State University agrees. He tells Inverse that “unless the hex and the other speech accompanying it could be reasonably construed as a ‘true threat’ to injure someone, the placing of a hex on a public figure is free speech protected by the First Amendment.”
Ruthann Robson, J.D. a CUNY School of Law professor, says there are only a few narrow protection of free speech exceptions, including carefully defined doctrines of defamation, fraud, and incitement to violence. A spell, Roboson tells Inverse, “would not fall into any of these exceptions.”
Roy Gutterman, J.D. the director of the Tully Center for Free Speech at Syracuse University, reasons that if one were to limit or punish a speaker for calling for a hex, the hex would have to be categorized as a sort of “unprotected speech.” That sort of speech goes back to what Robson’s point: These are categories of free speech unprotected by the First Amendment and include acts like obscenity, perjury, and defamation.
A hex, Gutterman explains, is not necessarily an example of defamation but the question of whether or not it could be construed as a “true threat” or an intentional infliction of emotional distress requires that the subject of the hex — in this case, Kavanaugh — believe that they have received a realistic threat to safety and, in turn, is experiencing serious emotional distress.
“The emotional distress tort requires proof of outrageous conduct beyond the norms of decency or morality that causes severe emotional distress,” Gutterman tells Inverse. “I don’t think [the hex] would be punishable under criminal law because simply wishing or hoping something bad happens to someone is not a crime.”
Additionally, it’s likely that the witch’s hex is protected by another clause of the First Amendment: the protection of the free exercise of religion. Robson explains that just as a Catholic exorcist like Thomas is protected under the First Amendment’s free exercise of religion clause “so too would the Pagan hexers be protected.” Remember that the First Amendment meanwhile, goes like this:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Howard Schweber, Ph.D. a professor of American politics who teaches constitutional law at the University of Wisconsin, Madison agrees that the attempt to put a hex on Kavanaugh is doubly protected as both free speech and free religious exercise.
“Father Thomas should stick to theology.”
“Father Thomas should stick to theology,” Schweber tells Inverse. “Under the First Amendment, there are no specific categories of protected speech; instead there are categories of unprotected speech such as fraud, threats, or libel. But there is no category of unprotected speech related to ‘conjuring.’”
Ironically, while Thomas may not see hexes as a form of free speech, his mass is exactly what some constitutional scholars say is the best way to deal with something like a hex. Counter-speech is a legal doctrine that posits that the best way to deal with negative free speech is to counter it with positive free speech. It can come in many forms but it’s always a rebuttal of another’s claim, grounded in the idea that the answer to falsehoods isn’t censorship, but the expression of what one thinks is right.
“Like prayer, magic and witchcraft are firmly within the free speech tradition,” Zick says. “The proper response to the hex is counter-speech — which, by the way, is essentially what the ‘exorcism’ appears to be.”