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>Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/0

by yasp 9y ago

>Supreme Court unanimously reaffirms: There is no ‘hate speech’ exception to the First Amendment https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/supreme-court-unanimously-reaffirms-there-is-no-hate-speech-exception-to-the-first-amendment/ https://www.washingtonpost.com/news/volokh-conspiracy/wp/201...

thephyber 9y ago
> There is no ‘hate speech’ exception to the First Amendment Yet the "you have no right to falsely yell 'fire' in a crowded theater"[1] was an opinion of a SCOTUS justice about a man who was peacefully protesting the WW1 draft, distributing papers arguing for his political ideals. Yelling "fire" in a crowded theater runs a real risk of injury and it's negligent to do so falsely. Telling other people that you oppose a draft does not, yet has not been protected by the 1A (unless the person can prove some religious exemption, as did Muhammed Ali). As "cut and dry" as we pretend the 1A's protections are, they are far less than what laymen imagine. [1] https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...
- int_19h 9y ago
  The case that cited "fire in a crowded theater" was pretty much entirely demolished in Brandenburg v. Ohio. While there hasn't been a specific case on opposition to the draft, telling that you do so is certainly within the "imminent lawless action" line set by that ruling.
vkou 9y ago
No, but there are fighting words exceptions. Is "I think black people should be enslaved" fighting words? What about "All jews should be gassed"? Where do torch-wielding mobs marching down the street fit into all this?
- phdp 9y ago
  Neither of those are fighting words. See trope 7 from Ken White, a noted lawyer and first amendment expert - https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://www.popehat.com/2015/05/19/how-to-spot-and-critique-...
  - vkou 9y ago
    If I were black, or Jewish, they would be direct threats of violence against me. A reasonable person would be expected to react violently to them. The sole purpose of that speech is eliciting a violent reaction from the recipient. This is not a theoretical problem. There have been ~50 hate killings in the US this year. (And we haven't even had a mass shooting.)
    - Karunamon 9y ago
      "fighting words" is a legal doctrine, not a personal one. It's not for you or I to define any more than you or I can define "murder".
      - vkou 9y ago
        It recognizes that there exists speech so reprehensible, that it cannot be tolerated in civilized society, and cannot, and should protected. Where judges chose to draw the bar is incidental to the fact that this exception exists. That they chose to draw it where they did is a legal question, not a moral one.
        Karunamon 9y ago
        Where judges chose to draw the bar is incidental to the fact that this exception exists. The fact that judges draw the bar rather than you are me is critically important to prevent abuse. Innumerable boorish people would consider calling out their behavior to be "fighting words".
    - KGIII 9y ago
      They have to be credible, specific, and actionable.

by yasp 9y ago

thephyber 9y ago

> There is no ‘hate speech’ exception to the First Amendment Yet the "you have no right to falsely yell 'fire' in a crowded theater"[1] was an opinion of a SCOTUS justice about a man who was peacefully protesting the WW1 draft, distributing papers arguing for his political ideals. Yelling "fire" in a crowded theater runs a real risk of injury and it's negligent to do so falsely. Telling other people that you oppose a draft does not, yet has not been protected by the 1A (unless the person can prove some religious exemption, as did Muhammed Ali). As "cut and dry" as we pretend the 1A's protections are, they are far less than what laymen imagine. [1] https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...

int_19h 9y ago
The case that cited "fire in a crowded theater" was pretty much entirely demolished in Brandenburg v. Ohio. While there hasn't been a specific case on opposition to the draft, telling that you do so is certainly within the "imminent lawless action" line set by that ruling.

vkou 9y ago

No, but there are fighting words exceptions. Is "I think black people should be enslaved" fighting words? What about "All jews should be gassed"? Where do torch-wielding mobs marching down the street fit into all this?

phdp 9y ago
Neither of those are fighting words. See trope 7 from Ken White, a noted lawyer and first amendment expert - https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://www.popehat.com/2015/05/19/how-to-spot-and-critique-...
- vkou 9y ago
  If I were black, or Jewish, they would be direct threats of violence against me. A reasonable person would be expected to react violently to them. The sole purpose of that speech is eliciting a violent reaction from the recipient. This is not a theoretical problem. There have been ~50 hate killings in the US this year. (And we haven't even had a mass shooting.)
  - Karunamon 9y ago
    "fighting words" is a legal doctrine, not a personal one. It's not for you or I to define any more than you or I can define "murder".
    - vkou 9y ago
      It recognizes that there exists speech so reprehensible, that it cannot be tolerated in civilized society, and cannot, and should protected. Where judges chose to draw the bar is incidental to the fact that this exception exists. That they chose to draw it where they did is a legal question, not a moral one.
      - Karunamon 9y ago
        Where judges chose to draw the bar is incidental to the fact that this exception exists. The fact that judges draw the bar rather than you are me is critically important to prevent abuse. Innumerable boorish people would consider calling out their behavior to be "fighting words".
  - KGIII 9y ago
    They have to be credible, specific, and actionable.