• Burn the Witches of Gaza

    June 3, 2024

    Tags: , , , , , ,
    Posted in: Democracy

    My conundrum begins with the base concept that there is no such thing as hate speech according to the First Amendment. I believe something very different than the encampment protestors at Columbia. But I believe in defending their right to protest legally just as much. Makes for some uncomfortable times, but it’s the thought that counts.

    There are no laws against “hate speech.” Some people have developed an alternate understanding of free speech, with students in particular believing “offensive” speech should not be protected, particularly when the offense is directed at groups defined by race, religion, ethnicity, gender or sexual orientation. But the 1A says a speaker can call people names, and insult them by their religion. What many people think and say is hateful. It is in fact carefully thought out to inspire hate, to promote hate, to appeal to crude and base instincts. Indeed, that is the point. Free speech means just that, with any limited restrictions content-neutral. So there’s nothing in the law per se that prevents people from holding and/or shouting anti-Semitic views.

    BONUS: Much of what follows applies to Donald Trump’s own statements to the mob on January 6. His so-called inflammatory statements that morning are protected by much of the same law as the Gaza encampment people. It should make a college age ACLU donor proud to know her $25 contribution with Mom’s credit card helps the Gaza encampment people, Israel supporters, and Trump.

    But what about when that anti-Semitism extends to calls to violence, horrible stuff like signs asking for counter-protesters to become Hamas’ next victims? Brandenburg v. Ohio precludes speech from being sanctioned as incitement to violence unless (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intends that their speech will result in the use of violence or lawless action, and (3) the important one: imminent use of violence or lawless action is the likely result of the speech. A hostile reaction of a crowd does not transform protected speech into incitement. Listeners’ reaction to speech is thus not a content-neutral basis for regulation, or for taking an enforcement action against a speaker.

    A second type of speech that is categorically excluded from First Amendment protection and often erroneously labeled hate speech are “fighting words.” This category of unprotected speech encompasses words that when spoken aloud instantly “inflict injury or tend to incite an immediate breach of the peace.” No advocacy can constitute fighting words unless it is “likely to provoke the average person to retaliation.” Offensive statements made generally to a crowd are not excluded from First Amendment protection; the insult or offense must be directed specifically at an individual.

    The upshot is that apart from some very narrow definitions of violence-inducing words, the obligation exists to the concept of free speech independent of the content of that speech. This is also one of the most fundamental precepts of free speech in a democracy. There need be no protections for saying things that people agree with, things that are not challenging or debatable or offensive; free speech is not really needed for the weather or sports.

    But what about anti-Semitic speech such as “From the river to the sea [wipe out the Jews]?” Isn’t this the equivalent of that bit about shouting fire in a crowded theatre?

    The Fire! line comes from the Supreme Court decision in Schenck v. United States and is often cited as justification for limiting free speech. Justice Oliver Wendell Holmes said “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”

    The full decision says the First Amendment doesn’t protect false speech that meets three conditions: 1) the speech must be demonstrably false; 2) it must be likely to cause real harm, not just offense or hurt feelings, and 3) must do so immediately, a “clear and present danger.” This interpretation of the First Amendment has been adjudicated to impose a high barrier to restrictions on what can be blocked or banned, and over the years has allowed flags to be burned in front of veterans and Nazis to march among Holocaust survivors, and yeah, the “river to the sea” thing. None of this extends to trashing a building or blocking a public highway.

    Schenck was what jurists call bad law, in that it sought to use the Espionage Act against a Socialist pamphleteer, to stop free speech, not protect it (in other words, the pamphleteer was determined to be a clear and present danger in wartime.) The case was eventually overturned. The Supreme Court has set a very high bar against restricting speech based on the idea that what is being said leading to violence.

    But colleges and universities are not the government. Many are private institutions like X and Facebook that are not subject to the 1A. So shouldn’t they have the right to censor their students, the way X can censor tweets and Facebook block users?

    Academic administrators like to rely on the idea of “time, place, and manner” in their restrictions on speech. But public funding invokes the First Amendment for schools, though obviously if a school exists that accepts zero public dollars that’s another story. The legal argument extending the First Amendment to institutions accepting Federal funding is Rosenberger v. University of Virginia, where the Supreme Court held that the University could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. Universities like Columbia, which accept pubic funds, are avoiding the 1A by claiming their protesting students are trespassing, or violating school Codes of Ethics that specify time, place, and manner of protests. Whether the latter would stand up in court is an open question.

    There is no legal or other justification for banning speech based on who it may offend or threaten, in fact, quite the opposite. Justice Oliver Wendell Holmes declared unpopular ideas should have their opportunity to compete in the “marketplace of ideas.” Free speech is not an end, it is a means, in a democracy. Even in the weeks before finals. It is messy as hell, and it is our essential defense against fascism, whether from the left or the right.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

  • Recent Comments

    • Rich Bauer said...

      1

      It is hysterical that free speech articles continue to appear on Am Con, when the hypocrites deleted COMMENTS that offended the snowflakes.

      06/3/24 8:27 PM | Comment Link

    • John Poole said...

      2

      Bauer- “It is not hypocritical to discredit an opposing opinion when one’s infallibility is at risk. I think that was a Newman quote but probably loaned to him by George (Seinfeld TV). Kidding.

      06/5/24 8:00 AM | Comment Link

    • John Poole said...

      3

      Bauer: Was it Newman of Seinfeld? who said: It isn’t hypocritical to discredit an opposing view when fighting in the arena of infallibility.”

      06/5/24 8:12 AM | Comment Link

    • Rich Bauer said...

      4

      “Much of what follows applies to Donald Trump’s own statements to the mob on January 6. His so-called inflammatory statements that morning are protected by much of the same law as the Gaza encampment people.”

      Yes, Infamous felon Donald Trump is free to speak his mind (what’s left of it), as those who were injured by his actions are free to sue his ass for millions. As for the Gaza massacre, Bibi will have his day in court too.

      For every action there is an opposite equal reaction. Sometimes it just takes time.

      06/5/24 10:12 AM | Comment Link

    • John Poole said...

      5

      What would happen if committing adultery constituted a felony? JFK, Johnson, Clinton. Trump’s behavior fits in well and is nothing special.

      06/5/24 8:02 PM | Comment Link

    • Rich Bauer said...

      6

      Breaking News:

      The World Health Organization said on Wednesday a death was caused by the first laboratory-confirmed human case of infection with a subtype of avian influenza. WHO said the 59-year-old resident of Mexico had died on April 24 after developing a fever, shortness of breath, diarrhea, nausea and general discomfort.

      When H5N1 avian influenza started spreading among dairy cattle across the U.S. this year, regulators warned against consuming unpasteurized milk. What happened? Raw milk sales went up.
      Distributors of this unsafe-for-human-consumption product deny H5N1—which has the potential to sicken millions of people—is a danger. Dairy farmers decline to allow disease detectives onto their properties.

      Hey, Marge, get Fauci back in here.

      06/5/24 8:05 PM | Comment Link

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