Is Hate Speech Protected by the First Amendment?

Is hate speech protected by the First Amendment?

In my opinion, based on the U.S. Supreme Court’s First Amendment opinions for over 70 years now, hate speech is equivalent to “fighting words,” it is not protected by the First Amendment, and the U.S. Supreme Court needs to address this question head-on and soon.

Does the First Amendment protect “hate speech” that incites harassment or physical violence against Jews, LGBTQ, immigrants, or women?

I am seeing more hateful rhetoric today than I have seen at any other time in my life – a resurgence in neo-Nazis nationwide, including from people who openly identify as neo-Nazi and from others who claim they are not Nazis as they spout unmistakable Nazi propaganda.

Don’t believe me? Haven’t been paying attention?

The Southern Poverty Law Center’s website is a good starting point to research and find out which hate groups are thriving near you, including hate groups in South Carolina. There is also a graphic showing the rise of hate groups in recent years:

The number of hate groups rose to 953 in 2017, from 917 in 2016. Within the white supremacist movement, neo-Nazi groups saw the greatest growth – soaring by 22 percent. Anti-Muslim groups rose for a third straight year. Ku Klux Klan groups, meanwhile, fell from 130 groups to 72.

The First Amendment is sacred. I do not think it was intended to shelter and enable Nazis or other hate groups in 2018 America, however.

It is long past time for our federal courts to clarify exactly what is protected by the First Amendment when it comes to hate speech and to provide some concrete guidelines for police departments and the lower courts.

What is Hate Speech?

Hate speech is “speech that is intended to offend, insult, intimidate, or threaten an individual or group based on a trait or attribute, such as sexual orientation, religion, color, gender, or disability.”

It’s words that are “offensive, threatening, or insulting.” Examples that we see often include hateful speech targeting Jews, Muslims, African Americans, women, gays, transgender people, and immigrants. What does hate speech look like?

Name calling, racial slurs, symbology like the Swastika or burning crosses, calls for genocide, and calls for harassment or physical violence against minorities. Is that really protected by the First Amendment?

Is there some way we can distinguish between hateful speech that is protected by the First Amendment and hate speech that is not protected?

The Fighting Words Exception to the First Amendment

The courts have already tackled this problem, and there is over 70 years of precedent.

Since at least as early as 1942, in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the U.S. Supreme Court has consistently held that “fighting words” are an exception to the First Amendment’s protections.

What are “fighting words?”

Fighting words are words or conduct, “the direct tendency of which was to provoke the person against whom it was directed to acts of violence.” It includes “epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”

Does anyone really think that hate speech does not fall within the category of fighting words as defined by the U.S. Supreme Court? If a person is encouraging others to attack, harass, or hurt others based on their race, nationality, or religion, are those not “fighting words?”

Although they have not addressed hate speech in general, the South Carolina Supreme Court has held that racial slurs are fighting words that are not protected by the First Amendment. See City of Columbia v. Brown, 316 S.C. 432 (Ct.App.1995).

There is no question that most hate speech consists of fighting words that will immediately incite the listener to violence, which is not protected by the First Amendment in the United States of America.

Does it matter if the hate speech/fighting words are spoken to a person’s face where they might immediately incite one person to violence, or if they are spoken online where they might immediately incite hundreds or thousands of people to violence?

Matal v. Tam

In Matal v. Tam, decided in June of 2017, the U.S. Supreme Court held that it was a violation of the First Amendment for the government to refuse to register “The Slants” as a band’s trademark:

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

I agree with the Court’s decision in this case.

Although some are claiming that this opinion clarifies that hate speech is protected by the First Amendment, I don’t see “The Slants” as a band’s name as “fighting words” that will immediately incite violence, particularly when it is placed in context.

It wasn’t intended as hate speech or even to denigrate the Asian race. As the Court notes near the beginning of the majority opinion:

“Slants” is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.

I don’t think that this opinion in any way stands for the proposition that hate speech of a different degree – the type that would immediately incite a person to violence – is protected by the First Amendment.

Daily Stormer Lawsuit Survives First Amendment Challenge

In Montana, a Jewish woman filed a lawsuit against Andrew Anglin, the publisher of the Daily Stormer website, alleging “invasion of privacy, intentional infliction of emotional distress and violation of a Montana anti-intimidation law.”

Last month, the federal court ruled that Anglin’s actions were not protected by the First Amendment and the woman’s lawsuit could proceed. The actions that Anglin claimed were protected speech, and their consequences, included:

  • Targeting her through his website by encouraging followers to harass her;
  • She (and her family) received more than 700 threatening communications from his followers including statements like “Day of the rope soon for your entire family,” and “Six million are only the beginning;”
  • They played audio of gunshots when she answered her phone;
  • Publishing images online of the woman and her 12-year-old son superimposed over the gates of Auschwitz; and
  • Threats to hold an armed neo-Nazi march in the small town where she lives.

On his website, Anglin published:

  • Contact information for the woman and her family;
  • Instructions for how to harass her; and
  • Content to use when harassing her.

There is no question that the federal district court got it right, and this type of conduct is not protected by the First Amendment.

But Isn’t Political Speech Always Protected by the First Amendment?

Political speech is absolutely protected.

Advocating for the genocide of an entire race of people or harassment of a person based on their race, religion, or nationality is not politics.

You Can’t Shout “Fire!” in a Crowded Theater…

Justice Holmes’ famous quote from Schenk v. United States, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic,” apparently does not apply to hate speech…

When a man’s shouts of “Heil Hitler! Heil Trump!” in a theater during a performance of Fiddler on the Roof (a Jewish story set in a Jewish village), just a few weeks after 11 Jewish people were murdered in a Pittsburgh synagogue, sent panicked theater-goers running for the exits, police did nothing.

“As reprehensible as those words are, they are considered protected free speech because nobody was directly threatened,” police spokesman Matt Jablow said in an email.

I disagree.

Yelling “Heil Hitler,” whether it is in a theater or on the street, is speech that would tend to incite many people to immediate violence – that is not and should not be protected by the First Amendment.

Why Aren’t More Lawyers Speaking Out About Hate Speech?

I would love to hear more attorneys – those entrusted with preserving Justice, Freedom, and Equality in our nation – speaking out about the current climate of hatred in our country.

Why aren’t they?

Some, although not openly, may sympathize with white supremacists. Others may fear reprisal from the ever-growing white supremacist communities – i.e. what happened to the Jewish woman in Montana.

More, I’m afraid, are simply afraid of losing potential clients. Open neo-Nazis and members of other white supremacist groups are just the tip of the iceberg – many, many more in our state and country silently share their views and beliefs.

If you are an attorney in the state of South Carolina, you are uniquely positioned to speak out or take legal action against these groups and the hatred that they are spreading.

Do something.

Say something.

Criminal Defense and First Amendment Lawyer in Charleston, SC

Charleston criminal defense attorney Grant B. Smaldone focuses on state and federal criminal defense cases in the Charleston, SC area. If you have been charged with a crime in Charleston, SC, call now at (843) 808-2100 or send us an email to speak with a SC First Amendment and criminal defense lawyer today.


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