Where Do We Draw the Line Between Free Speech and Hate Speech?
Lessons from the Supreme Court’s First Amendment Jurisprudence
The “Unite the Right” rally in Washington D.C. raised some interesting First Amendment issues. There were only about two dozen protestors “commemorating” last year’s violent Charlottesville rally, which was held to protest the removal of a statue of Robert E. Lee, in which a counter-protestor was killed when a protester plowed his car into a crowd.
As the protestors were met by thousands of counter-protestors, the rally could be deemed a failure. But another issue is that taxpayers had to pay out $2.6 million in security costs. The cost was incurred by the District of Columbia but Congress has already approved federal funds to reimburse D.C. for the costs of policing rallies and protests.
In a world where we see protests with the potential for violence and are flooded with offensive, vile memes on social media, some of them, we are told, originating in Moscow, the question is raised: to what degree are hate speech and protests protected by the Constitution? Where do we draw the line? We all know that you can’t falsely shout “fire in a theatre,” but short of that clear outer boundary, what can individuals say or do?
The First Amendment states, “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.” But what exactly do these clauses mean? The Supreme Court has attempted to answer that question in a number of decisions. Many of them are of historical significance and are familiar to lawyers from their law school days. Let’s look at how they apply to today’s protests and tweets.
We start with Oliver Wendell Holmes’ opinion in Schenck v. United States (1917) which gave us the notion of a “fire in a theatre,” and more fundamentally, the “clear and present danger” test. Writing for a unanimous Court, Holmes opined that Schenck violated the Espionage Act of 1917 (as amended by the Sedition Act of 1918), when he distributed flyers protesting the draft during World War I. The statutes were found not to violate the First Amendment. Although the phrases “fire in a theatre” and “clear and present danger” remain with us, the holding was has been discredited in the eyes of free speech advocates at the time and even Holmes himself had second thoughts about his opinion. As we will see below, it was partially overturned in 1969.
The next major case in our chronology was Chaplinsky v. New Hampshire (1942) in which the Court was confronted with a Jehovah’s Witness who used the public sidewalk as a pulpit and passed out pamphlets calling organized religion a “racket” and drawing a large crowd that blocked the road. No violence arose as a result of Chaplinsky’s actions but he was nevertheless arrested and convicted under a New Hampshire statute that forbade “intentionally offensive speech directed at others in a public place.” A unanimous Supreme Court held that the First Amendment did not protect, “the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace,” and upheld the conviction.
In Brandenberg v. Ohio (1969) the Supreme Court declared that Ohio’s “criminal syndicalism” statute, which was broadly worded to prohibit the mere advocacy of violence violated the First Amendment. In doing so it partially reversed Schenck’s “clear and present danger” test and held that speech is protected unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The “imminent lawless action” test gives more latitude to offensive speech that Schenck or Chaplinsky.
Perhaps more relevant to the Charlottesville rally and the anniversary rally in D.C. is National Socialist Party of America v. Village of Skokie (1977). In a 5 to 4 decision, the Supreme Court majority held that a Nazi group had the right to hold a parade or demonstration involving the public display of the Nazi swastika as a form of free speech presumptively protected by the First Amendment.
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The Court revisited racist protests again in R.A.V. v. City of St. Paul (1992). The city of St. Paul had adopted an ordinance which stated, “Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, 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 gender commits disorderly conduct and shall be guilty of a misdemeanor.” A now-unanimous Court held the ordinance unconstitutional under the First Amendment.
Finally, in Snyder v. Phelps (2011), what is known as the Westboro Baptist Church case, the Court held that a protest, held on public property, at the funeral of a fallen gay soldier, was protected by the First Amendment. The Court also held that the church’s actions could not give rise to the tort claim of intentional infliction of emotional distress.
Thus, it is fairly clear that protests by the Alt-Right, KKK, Nazis, or, for that matter, Antifa, are protected by the First Amendment, at least where the protestors do not attempt to incite or produce violence. Will the next Supreme Court case further clarify where the line is drawn?
