Tag Archives: First Amendment

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‘Incitement’ Should Not be Protected Speech


We expect Presidents to condemn hate speech, not contribute to it by inciting violent attacks.

Our political and legal institutions are lagging badly in dealing with twenty-first century communication forms that enable acts of violence against others.  The sources of this rhetoric of hate may be politicians of various kinds, nativist groups that have formed online communities, or others using live forums.  All are threats to the nation that we seem ill-prepared to handle.  To add to the challenge, bloodshed motivated by hate has been made worse by a President whose billigerence has placed him in the chain of causes that have led to violence.

No one wants to give ground on protections for Americans to speak and publish at will. The First Amendment is our birthright. Dissent is often a necessary source of influence for needed reforms. The rights of advocates should always have a presumptive position in any discussion that would alter their protections.  Even so, we are facing threats from especially from two quarters that should have the attention of law enforcement officials everywhere.

Incredibly, as we have noted, one source of the problem is the President himself.  We are in a period dominated by unprecedented presidential bullying that a reasonable listener could understand as sanctioning attacks on members of the press and opponents.  This week, when a person in a Trump rally suggested shooting border crossers, Trump simply smiled and laughed it off: further evidence of his stunning moral vacancy.

In 2018 Trump praised a member of the House of Representatives, Greg Gianforte, who assaulted a journalist and knocked him to the floor at his Bozeman Montana office. Trump applauded this aggression at another rally, noting  “any guy that can do a body slam, he’s my kind of — he’s my guy.” It’s part of a larger pattern of sneers and taunts often directed at national journalists who are often separated from a jeering MAGA crowd only by a rope line. Some news organizations have had little choice but to hire protection for their correspondents from mobs fired up by the President. That’s how bad it’s become.

In yet another recent rally Trump talked about reproductive health clinics as if they were in the business of murdering babies. His specific choice of words included “executing babies,” followed by a chopping gesture that we might see in a butcher shop. This kind of talk was apparently enough to motivate at least one man, Matthew Haviland, to threaten kill “every Democrat” and other pro-choice demons he imagined, triggering a rare response from the F.B.I’s Joint Terrorism Task Force.  We expect Presidents to condemn hate speech, not contribute to it by inciting attacks on other Americans.

The second source of this problem is even more ominous because it is also omnipresent. It is hate speech that is easily spread via extremist manifestos online.  Most terrorism experts have given up on the old law enforcement bromide of the “lone wolf” shooter: a characterization that might have once been used to explain gun attacks similar to those on American synagogues in San Diego and Pittsburgh. Now, the more common analysis is that individuals are connected by racist or anti-immigrant websites that still get First Amendment protections.  Apparently even haters have their chat groups.  John Earnest, the attacker in San Diego, was reportedly motivated by online rhetoric from the recent New Zealand mass murderer, who was trying to exterminate Muslims.

Our hands-off approach is producing increasingly dire results. 

Online manifestos functioning as calls to action against “alien” groups are all over the internet, sometimes taken down by individual platforms like Facebook, and sometimes allowed to stand.  Groups may be motivated by anti-semitism, racism, hostility to immigrants and others. The problem is enormous because one platform that might reject content can be replaced by another. There is always an internet server somewhere inside or outside the United States that will host poisonous content.

To be sure, an internet that has turned into what the New York Times has called a “sea of hate” is beyond the easy control of any one nation.  Like most digital media, content easily slips through political boundaries.  Even so, we could be doing more to curb homegrown threats.

Should we Protect Hate Speech that Targets Others?

For the most part, hate speech in the United States is protected.  A 1969 Supreme Court Case, Brandenburg v. Ohio, allows vitriol to exist unless it is likely to incite “imminent lawless action.”  But few federal judges then or now want to prosecute speech on this premise.  There is a long legal tradition to err in favor of the hothead expressing verbal hostility. But this hands-off approach is producing increasingly dire results.  While most Americans would accept the rights of even a Nazi group to march or a group of white supremacists to gather, others might question why incitement is so narrowly defined.  For example, English law allows charges to be brought against a person for “incitement to racial hatred.”  Would our admirable record of tolerance of free speech be significantly harmed by a similar prohibition suggesting a violent response?

Smarter minds than mine need to begin to sort all of this out.  But it appears that our laws and constitutional protections are far behind our technology and the coarsening of our rhetoric.  We now have robust networks for the dissemination of hatred, even while basic norms of civility have withered.

The First Amendment

                                                                    commons wikimedia

The idea of a “bulwark against tyranny” is probably an overused phrase.  But it applies perfectly to the First Amendment, the core American canon that may be our best export.  

These are days Americans are scrambling to remember the school civics lesson that explained rights of advocacy guaranteed by the Constitution.  In those classes long ago the Amendment probably registered as just another academic exercise. But the present instability of the Presidency requires that we be awake and pay heed to its words.  As students we were assured that The Amendment ratified in 1791 was our birthright.  We may need to test that promise.

The wording is brief but empowering.

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.

Even as non-experts we can still understand the broad outlines of the Amendment’s five overlapping guarantees:

  • We have the right to be practice a religious tradition or not.  With few exceptions pertaining to a church’s tax status, the “Establishment Clause” and its related “Free exercise” clause means there can be no imposition of state or federal laws that would require or limit religious practice.  Action by the President to circumscribe the rights of Muslim residents or visitors thus offends one of  the most honored principles in the American project.
  • We have the right to say and print what we wish, though where we exercise these rights can be altered by public safety concerns and limits on trespassing.  Most protests in cities and towns, for example, require notification of the police and permitting. In the workplace expressing political attitudes at work breaks no laws.  But those views can still get you fired.
  •  Freedom of association and a assembly is a basic right. And though an elected official retains the power to determine how and when, we have the right of “petition:” to meet with elected officials or their representatives. Town hall meetings or visits to the office of a member of Congress are not gifts from the member, but a constituent’s right.
  • In light of the President’s reprehensible description of the media as the “enemy of the people,” the guarantee of a free  press has added importance.  The press is the only form of business given constitutional protections, and the license from the Amendment is broad.  Media outlets are given leeway to “publish”  not just accurate information, but misinformation and hostile judgments of others. As it should be–and unlike the United Kingdom–libel is difficult to prove in American courts.  In practice, the greatest protections of speaking and writing go to artists and journalists portraying the work of public figures.

We actually honor the First Amendment by tolerating speech and published material at the margins, including–in many cases–communications that on other grounds are repellant and uninformed.  There is irony that our most cherished national value is frequently paired with words and actions most of us could not endorse.  But it’s enough to tolerate the authors of sometimes ill-considered ideas.   Protecting them protects us all.

The idea of a “bulwark against tyranny” is probably an overused phrase.  But it applies perfectly to the First Amendment, the core American canon that may be our best export.