The argument that because the First Amendment contains narrow exceptions for A, B, and C, therefore it must contain an exception for X, Y, and Z is not persuasive.
The exceptions you list are all pretty well-trod territory and mostly extremely narrow (the “fire in a theater” trope is especially less than usefulto put it charitably) There are lots of cases discussing “hate speech” and whether it fits into any of the categories that can permissibly restricted, and the result is pretty consistently: no.
If you’re going to ignore fully half of what is written about these rulings and the applicable law, then I don’t think we have a reasonable discussion. The court keeps upholding hate speech that intimidates or threatens, time after time. That’s what the federal law is based upon, it’s what Minnesota’s law was modified to after RAV, and it’s the part of the Virginia law that was upheld by the court.
interesting, looks like i wasn’t right (thanks for the link), under the latest interpretation, smdh. that’s awful.
but i’m disturbed with Scalia’s interpretation that unsavory words aren’t protected and can be banned but hate speech can’t. that is a pretty revolting conservative set of values when making making a ruling on what should and should be an exception to it, especially look at all the reasons exceptions have been made:
"The court noted that the law would be constitutional if the law included an element of specific intent to inspire fear" well, that’s a fine line to pretend isn’t crossed by hate speech also explains the inclusion of intent clauses.
There’s a reason why there were 4 consenting (but differently worded) statements. Most of the justices agreed with the outcome, but few agreed with Scalia’s asshole explanation.
You’re somewhat right but also somewhat wrong, at least about my motives. I think that there needs to be a shift in what is considered to be political speech.
If one murders or enslaves someone else, that’s illegal.
If one plans to murder or enslave someone else, that’s illegal.
If one makes a credible threat to murder or enslave someone else, that’s illegal.
Somehow, advocating for doing so en masse is legal. Why is it legal to advocate for genocide or racial slavery? We know the history of why, but in the 21st century, how can such speech be considered political? Is it actually feasible that such things could be made legal in a modern society? No. So how is that even open for interpretation as being a valid political position?
While making broad statements about white supremacy might not pass the test of credibility, when you talk about actual neo-Nazis or actual KKK members or even Confederate flag-wavers who also make statements advocating genocide or slavery (there are people who actually advocate making slavery legal in Mississippi even now), the combination of advocacy and the attachment to historical movements that actually committed those crimes against humanity, that should cross the line into immediate and credible threats.
Yup, speech that intimidates or threatens, i.e. fits into the “true threat” exception. That’s what I said some time ago. It isn’t a restriction on “hate speech,” it’s an application of existing exceptions to the 1A. That’s what RAV and Virginia made very clear, gifs of Tommy Lee Jones notwithstanding. (and of course Melz is going to give a heart to posting a gif on a discussion of Constitutional law–that’s low-hanging fruit, Duke! [insert emoji of winking pineapple here]), It’s why Phelps came out the way it did.
Here’s the thing: “hate speech” is protected speech under the First Amendment. It just is. Numerous cases make that explicitly clear. You may disagree with the wisdom of that fact, but it remains a fact.
Your later post re: “political speech” makes some interesting arguments, and I am ambivalent about some of the realities of allowing the kind of speech you reference. But, as it is, that speech is constitutionally protected. It isn’t a matter of opinion or something reasonable people disagree about, it’s just the state of the law that any ConLaw professor at any law school in the country would tell you on the first day covering 1A law.
To some extent, we are in vehement agreement. When you say hate speech is protected, then say hate speech that intimidates or threatens is not, that’s just the flipped coin of what I am saying, which is that some hate speech is illegal, and not covered by the 1A, such as when such speech intimidates or threatens.
What’s relevant is this: If RAV were tried today with Minnesota’s current law, it would be upheld, because it now refers specifically to conditions that include intimidation.
I’d also say that any situation where someone burns a cross in an African-American’s front yard is both intimidating and threatening. That isn’t something that is covered in other laws.
Put a burning bag of dog poo on someone’s porch, and that’s a prank.
Put a burning cross on someone’s lawn and it literally translates, from historical meaning and precedent, “If you don’t leave town, we will kill you and your family at night.”
At this point, you’re being kinda an ass. You posited that BBers want hate speech to be illegal, and I responded that a flavor of that is in my wish list, and even quoted your poser in my post. I know what the law is; I’m proposing that the interpretation should change. Jeez, look elsewhere when you want to tilt at strawmen.
If an US kid (or girl) likes to wear a WWII era uniform I think there are way more suitable ones. And if they see a Nazi-dressed kid they could kick them back from Vierville-sur-Mer to Berlin.
In any event, could you explain why you believe I am incorrect about the protections afforded to “hate speech” under the 1A? Because the state of the law isn’t really in doubt–it’s protected speech. Even the original participants of the discussion agree at this point that it’s protected speech.
Actually it’s the Supreme Court’s insistence so far. Have you read any of the cases that have been discussed? RAV? Phelps? Virginia? Because they are the sources that explain that the 1A doesn’t have an exception for hate speech, it’s not my argument.
It’s been posted above, but the Wikipedia entry has links to all these cases.
And let’s not forget “one can’t write a story about Mickey Mouse.*” Restricting speech is totally fine over relatively trivial matters. When the supreme court has gotten in a tizzy about restricting hate speech it has usually been because people started using the same tactics against white supremacists that they already used successfully in the past against black people or socialists.
* There are plenty of fair use exemptions but the point remains that your speech is limited under the law to protect other people’s non-enumerated right to profit.
The controversy over this particular example is that it was made famous by being used as an example in a case where they restricted anti-war speech. Basically people look back on that as a bad decision. Somehow this gets to people thinking that yelling fire in a crowded theater is a bad example of free speech, which baffles me. The whole point is that it was a great example of limits on free speech, which is why the government wanted to pretend that anti-war speech was akin to it.
It’s like if there was a historical case where someone argued we can’t have interracial marriage for the same reason you can’t marry a donkey, and people looked back on that shameful case and said, “You should be able to marry a donkey!”
it’s unclear if intentional or not.
