Friday, August 19, 2022

Become a Patreon!

Article Index

4. The United States

In the United States, all speech regulations must be evaluated with reference to the touchstone of the First Amendment to the Constitution of the United States.On its face, the amendment's language is absolute: Congress shall make no law ... abridging the freedom of speech However, the United States Supreme Court has asserted that the right of free speech is not absolute at all times and under all circumstances. There are certain welldefined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional Among these, according to the Court, are insulting or fighting words--those which by their very utterance inflict injury or tend to incite an immediate breach of the

The Supreme Court has further stated that [r]esort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that This declaration, on its face, seems to imply that the Court recognizes a carve-out within the absolutist language of the Constitution for personal dignity, a sort of unspoken protection in keeping with the principles of explicitly declared restrictions in German, Israeli, and European law. However, the Court's decisions have never prioritized or enforced such a protection, instead providing strong safeguards even for speakers who resort to discriminatory and incendiary messages.

In Brandenburg v Ohio, the defendant, a Ku Klux Klan member, spoke at a rally of Klansmeh, some of whom were armed, and stated that if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance [sic] The defendant was convicted under a state statute that, inter alia, criminalized advocating or teaching the duty, necessity, or propriety of violence as a means of accomplishing ... political But the Supreme Court reversed his conviction, holding that the First Amendment requires a distinction between advocating a point of view and inciting immediate violent action. The Court held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

While Brandenburg addresses speech advocating unlawful conduct generally-- whether based on discriminatory viewpoints or not--the Supreme Court has also addressed regulations on speech specifically motivated by an intent to attack or disparage a person based on his/her race, gender, religion, etc.--hate speech. In RAV v City of Saint the Court determined that a statute aimed at preventing discriminatory speech was content-based viewpoint discrimination. The City of Saint Paul, Minnesota charged a juvenile who burned a cross on a neighbor's yard under a city ordinance criminalizing plac[ing] on public or private property a symbol ... which one knows or has reasonable grounds to know arouses anger, alarm[,] or resentment in others on the basis of race, color, creed, religion[,] or However, the Supreme Court held that even if the statute were construed to apply only to proscribable fighting words, and even if it's purpose was to ensure the basic human rights of members of groups that have historically been subjected to discrimination, including the right of such group members to live in peace where they wish, its language still violated the First Amendment. The municipal ordinance's language criminalized placing symbols that arouse anger based on race, color, creed, religion, or gender, while symbols that arouse anger based on other characteristics (e.g., sexual orientation or political affiliation) were not covered. The Court held that this content limitation showed special hostility towards the particular biases ... singled out--precisely what the First Amendment

Taken together, the First Amendment, Brandenburg, and RAV essentially eliminate hate speech regulation in the United States. States may punish speakers who intend to and are likely to incite imminent violence, but cannot punish those who merely advocate discriminatory viewpoints. In addition, states may not punish speech differently based on the reason it intimidates or incites violence; singling out certain viewpoints as particularly volatile or worthy of punishment is impermissible. Under this regime, the law does not recognize or address discriminatory speech harming a country's social fabric absent any direct call to violence. United States law focuses on the ends rather than the means--violence rather than the reason for it --and thus protects a broad range of discriminatory speech.