Violence incited by terrorist websites and unceasing online vitriol have led many nations to enact laws repressing hate speech. The European Union, for example, requires member nations to impose criminal penalties for “public incitement to violence or hatred.” The criminalization of hate speech differs from U.S. hate crime laws that enhance penalties for underlying crimes when the victim is selected based on a protected characteristic, such as race or status—for example, as a police officer.
Ideologically inspired mass shootings and bombings must be combated, but repressing communication that is not in direct furtherance of a crime violates the First Amendment. In Brandenburg v. Ohio (1969), the Supreme Court overturned the conviction of a Ku Klux Klan leader who, at a televised rally during which a cross was burned, announced, “if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.” The court held, “the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.” The government may prohibit statements only when justified by “a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Political speech is given special protection because, as George Washington wrote, “if men are to be precluded from offering their sentiments on a matter...reason is of no use to us—the freedom of speech may be taken away—and, dumb and silent we may be led, like sheep, to the slaughter.”
The solicitation of criminal activity, incitement to treason or genocide, and terrorist threats may be prohibited, but the mere publication of instructions on how to build a bomb and general statements threatening violence are protected. In Elonis v. United States (2015), the Supreme Court overturned the conviction of a disgruntled husband and self-styled artist who used the internet to describe the most effective manner in which to kill his ex-wife and posted “lyrics” that included, “I’m ready to turn the Valley into Fallujah.” Chief Justice John Roberts, writing for the majority, determined the jury was required to find the defendant intended to threaten or knew his posts were threatening; it was not sufficient that a reasonable person would feel threatened.
In Holder v. Humanitarian Law Project (2010), however, the Supreme Court upheld a free speech restriction despite the law’s failure to require criminal intent. The court determined that Congress may prohibit speech that aids foreign terrorist groups even when limited to legal advice regarding peaceful pursuits. The court found the government met the compelling interest test needed to justify free speech infringement but cautioned that the ruling is limited to providing material (direct) support to designated foreign terrorists.
There are other exceptions to the First Amendment’s protection against government censorship, such as those that apply to government employees and public school students, and civil laws that prohibit copyright infringement, defamation and other torts. Even private lawsuits, however, are subject to First Amendment scrutiny when they involve free speech claims. In Snyder v. Phelps (2010), the Supreme Court threw out a jury award against members of the Westboro Baptist Church who picketed the funeral of an Iraq war veteran killed in action. The court held that state tort law could not be used to penalize speech of public concern. Nevertheless, social media platforms like Facebook and Twitter may enforce their own user policies and restrict content they deem hate speech.
Every democracy must balance freedom with security. Our visceral reaction to hatemongers is to shut down their means of communication, but there is danger in government-imposed silence. As a nation we must decide to what extent we agree with Thomas Jefferson that this is “a country which is afraid to read nothing, and which may be trusted with anything, so long as its reason remains unfettered by law.”