Headline: Don’t Use These Free Speech Arguments Ever Again Ken White/The Atlantic August 22, 2019
Subtitle: Most speech, hateful or not, is protected by the Constitution. To pretend otherwise is foolhardy.
“Here are some misstatements, misconceptions, and bad arguments about the First Amendment you will encounter regularly in American media. Watch for them, and recognize how they distort the debate over speech.”
‘Not all speech is protected; there are exceptions to the First Amendment.’
‘This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.’
‘Incitement and threats are not free speech.’
‘Fighting words are not free speech.’
‘Hate speech is not free speech.’
‘Stochastic terrorism is not free speech.’ *
‘We must balance free speech with [social good].’ ‘There is a line between free speech and [social evil].’
‘They do it in Europe!’
‘We talked to a professor and a litigator who said this is not protected speech.’
‘This speech may be protected right now, but the law is always changing.’
Long Story Short:
Exceptions to the First Amendment are few and narrowly defined, e.g., fraud. Advocating violence is protected free speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Threats are protected speech unless they are “true threats” that convey a serious intent to unlawfully engage in a violent act against a specific individual or group. Hate-speech and abusive speech are both protected under the First Amendment. What the Europeans do is irrelevant to the question of whether free speech should be protected. Check out White’s excellent article for more detail, nuance, and context.
Next: Why does free speech matter?
* Per Dictionary.com, stochastic terrorism is “the public demonization of a person or group resulting in the incitement of a violent act, which is statistically probable but whose specifics cannot be predicted”