Yves here. I wish this post had more crisply debunked the idea that there is such a thing as “hate speech” in US law. There is not. There are hate crimes as as this explains, imminent threats. Nevertheless, this is a generally useful discussion of the contours and limits of First Amendment rights.
By Ray Brescia, Associate Dean for Research and Intellectual Life, Albany Law School. Originally published at The Conversation
Imagine a protest outside the funeral of a popular political leader, with some of the protesters celebrating the death and holding signs that say things like “God Hates the USA/Thank God for 9/11,” “America is Doomed” and “Don’t Pray for the USA.”
No matter the political leanings of that leader, most Americans would probably abhor such a protest and those signs.
What would tolerate such activities, no matter how distasteful? The First Amendment.
The situation described above is taken from an actual protest, though it did not involve the funeral of a political figure. Instead, members of the Westboro Baptist Church protested outside the funeral of Marine Lance Cpl. Matthew Snyder, a U.S. service member killed in Iraq.
Through demonstrations like this, members of this group were conveying their belief that the U.S. is overly tolerant of those they perceive as sinners, especially people from the LGBTQ community, and that the death of U.S. soldiers should be recognized as divine retribution for such sinfulness.
Snyder’s family sued for intentional infliction of emotional distress, among other claims. A jury issued a US$5 million jury award in favor of the family of the deceased service member. But in a nearly unanimous decision issued in 2011, the U.S. Supreme Court found that the First Amendment insulated the protesters from such a judgment.
The Trump administration has vowed to crack down on what it calls hate speech. It has labeled antifa, a loosely organized anti-fascist group, a terrorist organization. And it has sought to punish figures such as TV host Jimmy Kimmel for statements perceived critical of conservative activists.
What the First Amendment makes clear is that it does not just protect the rights of speakers who say things with which Americans agree. Or, as the Supreme Court said in a separate decision it issued one year after the case involving the funeral protesters: “The Nation well knows that one of the costs of the First Amendment is that it protects the speech we detest as well as the speech we embrace.”
But free speech is not absolute. As a legal scholar who has studied political movements, free speech and privacy, I realize the government can regulate speech through what are known as “reasonable time, place, and manner” restrictions. These limits cannot depend upon the content of the speech or expressive conduct in which a speaker is engaged, however.
For example, the government can ban campfires in an area prone to wildfires. But if it banned the burning of the U.S. flag only as a form of political protest, that would be an unconstitutional restriction on speech.
Protected and Unprotected Speech
There are certain categories of speech that are not entitled to First Amendment protection. They include incitement to violence, obscenity, defamation and what are considered “true threats.”
When, for example, someone posts threats on social media with reckless disregard for whether they will instill legitimate fear in their target, such posts are not a protected form of speech. Similarly, burning a cross on someone’s property as a means of striking terror in them such that they fear bodily harm also represents this kind of true threat.
There are also violations of the law that are sometimes prosecuted as “hate crimes,” criminal acts driven by some discriminatory motive. In these cases, it’s generally not the perpetrator’s beliefs that are punished but the fact that they act on them and engage in some other form of criminal conduct, as when someone physically assaults their victim based on that victim’s race or religion. Such motives can increase the punishment people receive for the underlying criminal conduct.
Speech that enjoys the strongest free-speech protections is that which is critical of government policies and leaders. As the Supreme Court said in 1966, “There is practically universal agreement that a major purpose of (the First) Amendment was to protect the free discussion of governmental affairs.”
As the late Justice Antonin Scalia would explain in 2003, “The right to criticize the government” is at “the heart of what the First Amendment is meant to protect.”
Restrictions on Government Action
The First Amendment prevents the government from taking direct action to curtail speech by, for example, trying to prevent the publication of material critical of it. Americans witnessed this in the Pentagon Papers case, where the Supreme Court ruled that the government could not prevent newspapers from publishing a leaked – and politically damaging – study on U.S. military involvement in Vietnam.
But it also applies when the government acts in indirect ways, such as threatening to investigate a media company or cutting funding for a university based on politically disfavored action or inaction.
In 2024 the Supreme Court ruled unanimously that the state of New York’s efforts to punish companies that did business with the National Rifle Association because of the organization’s political positions violated the group’s First Amendment rights.
Similarly, in recent months, courts have ruled on First Amendment grounds against Trump administration efforts to punish law firms or to withhold funds from Harvard University.
And just last week, a federal court in Florida threw out a lawsuit filed by President Trump against The New York Timesseeking $15 billion for alleged harm to the president’s investments and reputation.
Nevertheless, some people fear government retribution for criticizing the administration. And some, like the TV network ABC, have engaged in speech-restricting action on their own, such as taking Kimmel temporarily off the airfor his comments critical of conservative activists in the wake of Charlie Kirk’s killing.
Before Kimmel’s suspension, Federal Communications Commission Chairman Brendan Carr described his negotiations with ABC’s parent company, Disney, to take action against him. “We could do this the easy way or the hard way,” Carr said. And Trump said that some media companies might “lose their license” for criticizing the president. It is encouraging that, in the face of these threats, ABC has reversed course and agreed to put Kimmel back on the air.
The First Amendment protects speech across the political spectrum, even speech Americans do not like. Both liberal comedian Jon Stewart and conservative commentator Tucker Carlson have recently agreed on this. As Carlson said recently, “If they can tell you what to say, they’re telling you what to think. … There is nothing they can’t do to you because they don’t consider you human.”
Just last year in the NRA case referenced above, the Supreme Court clearly stated that even indirect government efforts to curtail protected speech are indeed unconstitutional. In light of that ruling, efforts to limit criticism of the administration, any administration, should give all Americans, regardless of their political views, great pause.
Law fair or law fare?
Justice or just us?
Laissez-faire.
And yet more than three-quarters of the states have passed laws preventing people from receiving benefits or doing business with the state government if they exercise their First Amendment right to support a boycott of one specific foreign country, Israel.
https://en.wikipedia.org/wiki/Anti-BDS_laws
I believe a few of those laws have been struck down by the SC. Of course for that to happen someone has to sue and be granted “standing” by the court. Also much of the support the US gives to Israel–legal and otherwise–has been kept off the front pages with the public barely aware. Now that Gaza is in the public eye that is changing.
I am not of course a lawyer but just reading the above there is obviously plenty of wiggle room in “appropriate time and place” and “true threat.” And so protests against Israeli actions have been twisted into some kind of “true threat” to Jewish Columbia students even when those Jewish students may have provoked confrontations. After all anyone who fights against Israeli occupation is a “terrorist” (according to the Israelis) and “terrorists” are threatening by definition. Supposedly free speech advocate Turley even agrees with this and approved when his George Washington U admin suppressed some Gaza protests. And this has gone on before as during the Cold War when onetime membership in the US Communist party was twisted into a threat.
Then of course there’s the limit imposed by corporations who can put “appropriate time and place” restrictions in employment contracts on the idea that employees in the course of their jobs are speaking for the corporation. Kimmel surely was subject to such a rule although ABC seems to have been responding more to objections from affiliate TV stations.
Perhaps the only true protection for political speech in a modern time, when most communication does not take place in the streets, is public consensus about what that freedom should be. That said Trump is threatening traditional freedoms in so many ways if only the Supreme Court will say so. If they don’t then public will have to do it–perhaps by taking to the streets.
Protests on Columbia’s campus are not subject to First Amendment protections. Its campus is not a pubic place. It is a private university.
However, the Administration pressuring Columbia to crack down on protests or speech is a First Amendment issue because the government is seeking to interfere in speech.
I don’t think there should be “hate crimes” either. That was the slippery slope that led to the idea of “hate speech”. A crime is a crime. Assault is assault, murder is murder, and that is enough. Has anybody ever beaten the crap out of someone else because they truly loved them? Obviously people commit crimes against those they don’t like for some reason or other. Adding the “hate” to it just opens the door for unusual punishments.
Also, at the end the article notes that the government cannot even indirectly curtail free speech. Wouldn’t that mean that what the Biden administration did in coercing social media to take down posts the administration didn’t like was illegal?* Not a legal scholar, but the concept of harm doesn’t seem to come into play here. The government can’t curtail speech, period. That would seem to contradict the decision in that Missouri case where they ruled against the plaintiffs, saying they couldn’t prove that they were specifically harmed by the government’s actions.
* I would be very surprised to find out that the Trump administration was not also doing the same thing. We’ll see how the forced tiktok sale goes, but there has been a lot of talk that the real problem with tiktok was that it allowed posts that treated Palestinians as actual human being, much to the chagrin of the Zionist entity. So now we have the government forcing the sale of a private company to an avowed Zionist in Larry Ellison, who will presumably then curtail the ability of people to post negatively about Israel. To me, this seems like a clear attempt to censor, but proving it in court would likely be difficult.
Hate crimes are basically a form of terrorism where the crime is intended to intimidate a group of people.
E.g. saying a racial slur when you’re in the middle of a bar fight isn’t really a hate crime, but spray painting a bunch of swastikas on a synagogue is.
I believe the “hate crime” legislation came in large part from reaction to the murder of a single individual, Matthew Shepard. At the time, it was assumed that he was murdered because he was gay. Later, there was some pretty convincing reporting that showed he was killed not because he was gay, but because he was a street hustler and drug user involved with the wrong crowd. His murderers deserved to be punished to the fullest extent of the law with no extra “hate crime” necessary.
But the crime was the murder. Supposedly the hate crime laws impose additional sentencing requirements according to the state of mind or character of the convicted. But haven’t judges always done this?
One suspects that the real purpose of such laws is to imply that hate itself is a crime which, as Yves says, it is not at least in this country. And if it is perhaps Trump is right that plenty of people hate him and should be locked up.
Some of us contend here that the Dems help muddy the water with their “it’s ok when we do it” attitude. Of course the Repubs do too. Better intellectuals needed?
I may be wrong, but I think if someone is charged under a “hate crime”, it makes the additional sentencing mandatory. As you said, I believe judges have always been able to use their discretion to a certain extent and add time if a crime is particularly egregious, or the opposite if it’s not.
Hedges interviews Trump would be target Medea Benjamin. Transcript.
https://chrishedges.substack.com/p/trumps-crackdown-on-anti-war-activists
A couple of observations. In the mid 1990’s, during a visit to Kenya, then President Moi, head of a an effective one party ‘dictatorship’, made it a treasonous offense for anyone to criticize him. I reflected, Kenya, a former Bristish Colonly (like the US) had fought and won its independence. It had a Constitution and a Bill of Rights that apparently protected 1st Amendment rights. In comparison, the US ‘ Bill of Rights had a 1st and 2nd Amendment. The logic of the intent and order in our Bill of Rights was readily apparent. To wit: Conservatives and other members of the population should consider protecing all their Amendment rights. Also, what doesn’t seem to be very well protected are acts suppresing First Amendment rights. Today, I was speaking with a person attending a local university. He said a ‘new student’ seemed to be probing for information related to other students’s political ideas, especially as might concern Israel. In the event, a climate of concern, justified or not,was being developed. E.G The ‘wrong viewpoint’ could have repercussions and students were reluctant to speak in such circumstances. Beyond that campus, it seems any number of organization, media or not, are choosing to be silent out of ‘fear’ rather than be critical of a government (l’etat c’est moi).