The First Amendment protects all kinds of expression. Ideas and beliefs can be verbalized, written, performed, or crafted using visual media. In addition to art and dance, messages can be communicated with tattoos, clothing, and even silence. In constitutional parlance, such nonverbal efforts to communicate are considered symbolic speech.
The short answer is yes. The more accurate answer is that it depends.
There is a fine line between advocating for violence and inciting violence. Only speech intended to incite violence can be criminalized and cannot claim First Amendment protection. The constitutional distinction between advocacy and incitement was adopted by the Supreme Court in Brandenburg v. Ohio. The decision in that case ensures that punishment will be levied only against speech that shows immediacy, gravity, and a high probability of agitating or provoking an audience to break the law.
Read more in Lynn's OpEd in The Washington Post: "What many on the right get wrong about the First Amendment: When politically inspired expression is violent, it loses constitutional protection"
The clear and present danger test was used from 1919 until 1969 to identify speech that purportedly had a natural or probable effect of inciting illegal activity; this speech was then stripped of First Amendment protection. The test was largely replaced by the Brandenburg incitement test in 1969.
The short answer is no.
Assuming you can define hate speech (is it a list of words or a list of targets?), it will be subject to withering constitutional scrutiny. That is because a law targeting hate speech, or any kind of speech is an anathema to an amendment that protects the right to speak freely. Laws directed at prohibiting speech are considered content-based and are most often struck down as unconstitutional.
If hate speech can also be defined as a “true threat”, “fighting words” or harassment, then, maybe it can be punished.
Yes and no.
Yes. Threatening speech can claim First Amendment protection. Threatening language is often intimidating; it may anger or unnerve the target, but it can nonetheless claim the protection of the First Amendment.
Writing for the court in NAACP v. Claiborne Hardware Co., Justice John Paul Stevens explained, “Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.” The court explained that an advocate must be free to stimulate their audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
No. True threats, however, are not protected by the First Amendment. Speech is a true threat only if the clear intent of the speaker is to induce a sense of dread in the victim such that they fear violence or death. True threats are criminal, and the First Amendment will not shield the perpetrators from punishment.
Read more in Lynn's OpEd in The Daily Beast: "His Words Were So Terrifying the Supreme Court Got Involved"
The court has defined fighting words as “words that by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” Essentially, fighting words can be analogized to assaultive speech. Fighting words provoke a reaction from the target, often toward the speaker. The words are inflammatory; they are calculated to bait the target into action and, for that reason, according to the Supreme Court, deserve no constitutional protection. For example: An inebriated patron in a bar who engages in racially charged, aggressive, or sexually explicit talk designed to provoke a reaction from another patron cannot use the First Amendment as a defense and claim “Hey, it’s a free country, I’m using my First Amendment right!” He can be arrested and charged for creating a breach of the peace by spewing fighting words.
From a First Amendment perspective, viewpoint discrimination is the worst kind of content-based restriction, because it targets only one side of the debate. The disfavored side is muted, but the favored side is allowed full expression. For example, Congress cannot pass a law that prohibits protests critical of US policy in Afghanistan but does not prohibit protests that support the policy.
Read more in Lynn's OpEd in Ms. Magazine: "The Anti-Abortion Movement's Attempt to Criminalize Abortion Speech"
Defamation can be written or spoken. Libel is the written form of defamation, and slander is the spoken form. Depending on whether you are a public figure or not will make a difference in your ability to collect damages.
Public officials and public figures place themselves in the public eye and into positions of power. With the power to influence comes additional scrutiny. That additional scrutiny might seem unfair and might even be untrue or unflattering but, as to people in the public eye, they will be unable to collect damages for false statements made about them unless they can prove the speaker acted with a consciousness that the statements they made are likely false. In legal/constitutional terms, this is referred to as actual malice. While the phrase “actual malice” includes the word “malice” which is generally understood as an intent or desire to cause injury or pain to another—it is not an element of the constitutional test. The constitutional concept of actual malice does not include intent to cause harm; rather, it includes recklessness that caused the public figure harm.
A non-public person will have an easier time collecting money if the information published was false and resulted in actual damages to the person defamed. Generally, unless the aggrieved person (the plaintiff) is seeking damages over and above those suffered, also known as punitive damages, the actual malice standard will not be applied.
Read more in Lynn's OpEd in The Hill: "Depp v Heard: The jury's burden"
Under most circumstances lies are protected. (The First Amendment is not a truth detector.) The point is not that false statements are constitutionally valuable. The point is that requiring perfection from those who choose to engage in public conversation is an impossible standard. Free, uninhibited speech requires considerable latitude
Section 230 of the Communications Decency Act provides that an individual who has been defamed or otherwise injured by online speech can only recover damages from the person or the entity that originated or perpetuated the speech. Facebook, Twitter and YouTube cannot be held liable for injuries resulting from speech posted on their platforms, only the person or persons who posts or re-posts the material will be held responsible. Congress has been threatening to amend Section 230 and there seems to be some wind behind their sails.
The Supreme Court has not defined pornography except to distinguish it from speech that is obscene. Obscene speech cannot claim First Amendment protection, mere pornographic speech (which can be expressed in pictures or by action) is protected.
However, to be perfectly clear, while adult pornography that is not obscene can claim the guardianship of the First Amendment, child pornography is not protected speech. Even the possession of child pornography is not constitutionally protected. Child pornography is the exploitation of children. It is criminal. Period.
To be obscene, the communication must appeal to prurient interest, which is variously described as appealing to sexual desire or evidencing a degrading or unhealthy interest in sex. Obscene speech also lacks serious literary, artistic, or scientific value. And what might be obscene in one community may be perfectly acceptable in another so that states and communities can generally define obscenity by their own standards as long as statutes regulating such speech are well confined to the limitations identified above.
A decision that is overturned by the Supreme Court is no longer good law and cannot serve as controlling precedent. Indeed, current opponents of abortion are banking on the Court to do just that during the next term and overturn Roe v. Wade, which generally made laws prohibiting or restricting abortion illegal during the first half of a pregnancy.
The short answer is no.
In 303 Creative v. Elenis, argued before the Supreme Court on December 5, 2022, the Justices are being asked to decide whether Lori Smith of Denver, Colorado can refuse to create wedding websites for same-sex couples based upon her religious beliefs that such unions are immoral. She is arguing her case based upon the First Amendment question identified above, and if the Justices decide the case on First Amendment grounds, she is likely to prevail.
But, as David Cole, the national legal director of the A.C.L.U. explained in his New York Times opinion piece, that is the wrong question to ask. Cole argues that the correct question is: If a person opens a business that serves the public, can they be compelled to serve all without discriminating against anyone based on race, religion, sex, sexual orientation, or gender expression?
The short answer to that question should (hopefully) be yes.
If, as David Cole suggests, the First Amendment is not in play here, then Ms. Smith will likely lose and she and other business owners will be faced with a choice: they can serve all without discrimination, or they can close shop. Business owners will not be able to use the First Amendment as a shield to protect them if they insist on serving only those who don’t offend their sensibilities.
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