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by Causes | 8.10.18

What's the story?

On August 12, white supremacists, Neo-Nazis, and alt-right groups are rallying outside the White House to mark the anniversary of last year's fatal Charlottesville Unite the Right event.
\nIn anticipation of the Unite the Right 2 rally, questions have arisen about what kinds of speech should be protected.\n
First, let’s have a quick refresher about which speech the First Amendment protects...

What does the First Amendment protect?

The First Amendment states:

\"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.\"

“Congress” also refers to state and local officials—meaning the government cannot prohibit a person’s free speech. Non-government entities, like private employers, can prohibit certain types of speech.

What does the First Amendment not protect?

Not all speech is protected by the First Amendment. Some of this speech includes:

\nObscenity - many forms of obscenity are protected and, as the legal resources site HG.org explains, \"there is a high threshold that must be met in order for obscenity not to be protected.\" This includes material that is “patently offensive based on contemporary community standards” and material that lacks any serious literary, scientific or artistic value. Child pornography is also not protected.
\nLibel and Slander - Individuals are not protected from legal repercussions if they defame another person through written (libel) or verbal (slander) communication.
\nCrimes Involving Speech - perjury, extortion and harassment aren’t protected by the First Amendment.
\nConduct Regulations - the government can prohibit demonstrations or rallies at certain locations, sound levels and poster sizes. The regulations cannot be directed only at certain ideas.
\nThreats - Speech isn’t protected when it targets someone with bodily harm or death.
\n\"Fighting Words\" - The Court defines fighting words as \"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.\" This includes language intended to incite violence or to encourage an audience to commit illegal acts.

When \"hate speech\" - which is protected - becomes something more, the last three bullet-points are usually brought up.

What is \"hate speech\"?

As Judge Andrew Napolitano explained in an op-ed on Fox.com: In 1969, Clarence Brandenburg, a KKK leader in Ohio, verbally attacked African Americans and Jews during a public rally. He urged his followers to travel to D.C. and practice violence against them. Brandenburg, Napolitano wrote, \"was prosecuted and convicted under an Ohio law that largely prohibited the public expression of hatred as a means to overthrow the government.\"
The Supreme Court overturned the ruling. As Napolitano explained, “the whole purpose of the First Amendment is to protect the speech we hate and fear.”

\"All innocuous speech, the court ruled, is absolutely protected, and all speech is innocuous when there is time for more speech to challenge it,\" Napolitano wrote. “This rule - known as the Brandenburg doctrine - has consistently been upheld by the court since its articulation.”

Napolitano was writing in an op-ed for Fox entitled \"Why hate speech is always protected.\" Similar sentiments appeared in op-eds in the Los Angeles Times (“Hate speech is loathsome, but trying to silence it is dangerous”), Boston Globe (“There’s no hate speech exception to the First Amendment”), and National Review (“There’s no ‘Nazi’ Exemption to the First Amendment”).

When does \"hate speech\" become \"fighting words\"?

To prove that speech isn’t protected because of the \"fighting words\" doctrine, an individual has to show three things:

The language is an insulting word or phrase.
It’s said face to face to someone.
The phrase is likely to provoke someone to retaliate.

At the original Unite the Right rally, demonstrators could be heard shouting inflammatory phrases like \"White Lives Matter,\" “You sound like a n_,” “Jews will not replace us,” and Nazi slogans “blood and soil” and “Sieg heil.”

Were these \"fighting words\"? Or were they hate speech?

Because the rally turned violent, and led to the death of one counter protester and injuries to 19 more, there’s a debate about whether certain aspects of the Unite The Right rally are protected by the First Amendment.
Reporters from various outlets shared videos of demonstrators shouting disparaging words at specific people or groups, including \"F--- you, faggots\" and “Go the f--- back to Africa” and “n-----” at a black woman.
As Vox explained, \"Constitutional law experts say these last two examples may not be protected forms of speech.\"
Caroline Mala Corbin, a constitutional law professor at the University of Miami, told Vox:

\"You could make the case that it was an insulting epithet, obviously a slur and racist comment that would provoke someone to retaliate.\"

Should the U.S. adopt Europe's \"dangerous speech\" doctrines?

Countries throughout Europe have what could be described as \"dangerous speech\" doctrines. Germany, for instance, considers Volksverhetzung (\"incitement of popular hatred\") a punishable offense, making it a crime to insult, defame or slur individuals in a manner violating their human dignity.
France has similar laws, including one which prohibits declarations that justify or deny crimes against humanity, like the Holocaust or other genocides.

What do you think?

The First Amendment already includes certains limitations to free speech. Should the U.S. adopt similar \"dangerous speech\" doctrines? When does free speech become “fighting words”? Could putting limitations on free speech prevent another Charlottesville? Hit the Take Action button and use your First Amendment rights to comment below.

—Josh Herman

(Photo Credit: dane_mark via iStockphoto)

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