Freedom of Speech and Hate Speech

Every so often day, we get politicians who try to be pious and claim to be omnipotent and know everything about US Law. This is a regular occurrence and we generally laugh at the foolishness of our leaders.

So today, I’m going to feature former DNC chair Dr. Howard Dean:

Now, this is in regards to what Ms. Ann Coulter said about Timothy McVeigh in 2002:

My only regret with Timothy McVeigh is he did not go to the New York Times Building.

Now, there is nothing redeeming about that statement. She later backpedaled and added:

…RE: McVeigh quote. Of course I regret it. I should have added, “after everyone had left the building except the editors and reporters.”

The first amendment, which entails the freedom of speech says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The Supreme Court has ruled on this several times. Notably R. A. V. v. St. Paul
505 U.S. 377 (1992)

The reason why fighting words are categorically excluded from the protection of the First Amendment is not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey

And then later in Snider v. Phelps

speech deals with matters of public concern when it can ‘be fairly considered as relating to any matter of political, social, or other concern to the community’ or when it ‘is a subject of general interest and of value and concern to the public.

and my opinions from that time still stand

Although I do not agree with their message, they are given the right to protest under the constitution. This is by no means an endorsement of their actions, but they should be given the same right as every other American. That right being their ability to express their ideas, regardless if it is popular or not.

So, then why do so many people think that “hate speech” is not protected? Well, it goes back to what was mentioned in R.A.V. v St. Paul: “fighting words”.

Currently, the following are not considered protected:

  1. obscenity
  2. child pornography
  3. speech that constitutes so-called “fighting words” or “true” threats.

So, where does hate speech follow under? At best, we could make an argument in regards to “fighting words” or “obscenity”. Suppose I say a racial epitaph and that really upsets someone. Now suppose that person decides to start a fight with me. In that case, despite it being hate speech, it would not be protected, because it contains an obscenity even if I didn’t directly target or threaten that individual.

So Ms. Coulter made have expressed “hate speech” (and in poor taste), but it is protected since it doesn’t violate the aforementioned rules.

There are some other restrictions that can be put on speech, but those need to meet different guidelines (Time, Place, and Manner Restrictions, if it satisfies the highest level of scrutiny the Court can apply, and so on); however, those are outside of the scope of this particular post.

In the mean times, I strongly recommend checking out the source listed for the unprotected forms of speech. It can help clear up a lot of aire for both sides.

Dean Tweet Archive

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