In October, Americans tracked the discovery of pipe bombs across the country and witnessed the slaughter of innocents at a grocery store in Louisville, Ky., and a synagogue in Pittsburgh. The perpetrators of these crimes were influenced by hate-filled propaganda.
Some might feel that a logical response to these incidents would be for the government to shut down media sources and organizations that spread hate and advocate violence. But in America’s open society, that would be unconstitutional. The First Amendment prohibits the government from censoring ideological expression.
But private companies, such as Twitter, do have policies that restrict the use of their platforms for hate speech. These policies are supported by the federal Communications Decency Act’s “Good Samaritan” provision, which permits the “blocking and screening of offensive material.” Though future court decisions may hold that social media platforms are the equivalent of the public square and must remain open even to offensive speech, for now private providers may police content posted on their platforms.
Challenges to the constitutionality of the Good Samaritan law have been unsuccessful except when brought against government-controlled platforms. Critics of President Donald Trump who had been blocked by the president from participating on his Twitter feed, for example, recently won the right to view and reply to that feed.
Future court decisions may hold that social media platforms are the equivalent of the public square and must remain open even to offensive speech.
The judge ruled that Mr. Trump uses the social media platform to issue presidential communications, so access to them cannot be limited. The First Amendment’s prohibition of government censorship also extends to the use of the courts to resolve private lawsuits. Claims against individuals and organizations that spread hate must be dismissed unless the disputed communication constitutes criminal behavior, such as “fighting words” or language that interferes with a protected civil right.
“Fighting words” are those that create a “clear and present danger” or are likely to induce a reasonable person to react violently. Context is important. A “drive by” slur is not enough to be defined as fighting words, but a barrage of abusive comments made in close quarters is likely to suffice. The law also permits recourse for true threats that cause a reasonable person to fear they will be physically attacked.
Moreover, spoken agreements to engage in a crime, as long as one co-conspirator takes action toward the commission of that crime, are punishable; and Section 1985 of the federal civil rights law establishes a private right to sue for damages caused by those who conspire against the civil rights of protected persons.
A lawsuit brought pursuant to Section 1985 against the organizers of the white nationalist rally held in 2017 in Charlottesville, Va., has survived a motion to dismiss. But lawsuits alleging intentional infliction of emotional distress caused by hate speech will not be successful unless the plaintiff demonstrates the defendant’s language was outrageous and unrelated to an issue of public concern.
Just a few weeks ago, Mr. Trump and his campaign organization won dismissal of a case, Nwanguma v. Trump, brought by three anti-Trump protesters who were assaulted during a 2016 rally held in Louisville. The plaintiffs were attacked after they expressed anti-Trump messages, and Mr. Trump urged the crowd to “get ’em out of here.”
The plaintiffs and their attackers argued that Mr. Trump should be held responsible because the attackers “acted pursuant to Trump’s instruction.” Nevertheless, the court determined, “Trump’s words may arguably have had a tendency to encourage unlawful use of force, but they did not specifically advocate for listeners to take unlawful action.”
“Trump’s words may arguably have had a tendency to encourage unlawful use of force, but they did not specifically advocate for listeners to take unlawful action.”
This lack of legal responsibility for the actions of others also applies to social media platforms. The same federal Communications Decency Act that permits “Good Samaritan” blocking of offensive content immunizes “interactive computer service” providers from liability for content they do not block. Even Gab.com, an outlet that advertises itself as non-censoring and was used regularly by Robert Bowers, the alleged gunman at the Tree of Life synagogue, will not be held liable for the actions of its participants. Currently, however, it has been silenced (“no-platformed”) by private internet and mobile service providers.
Hate-mongering is not the only speech protected by the First Amendment. Politicians and political advocates of all stripes enjoy near immunity from defamation lawsuits. The law provides a remedy for publicized false statements that harm the reputation of another, but opinions are never considered false.
A public figure who sues for defamation also bears the burden of proving the speaker knew or should have known a statement was false. Outrageous comments made during public debate that are “extravagant exaggerations” or “heavily laden with emotional rhetoric and moral outrage” are protected by the First Amendment as “rhetorical hyperbole” rather than defamatory statements of fact, as a federal court ruled in its dismissal of Stephanie Clifford’s defamation lawsuit against President Trump.
Ms. Clifford, better known by her professional name Stormy Daniels, filed the suit after Mr. Trump mocked her accusation that a man threatened her to be quiet about her sexual relationship with Mr. Trump. In response to Ms. Clifford’s description of the man, Mr. Trump tweeted: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know it)!” Mr. Trump’s statements, even if false and harmful to Ms. Clifford, were deemed protected because they were made in a political context.
Free speech cases are fact-specific and not every lie is protected. A defamation case brought against Mr. Trump by Summer Zervos was not dismissed because Mr. Trump repeatedly made factual assertions that Ms. Zervos's allegations of groping were lies. Nevertheless there likely are no legal remedies for statements made to denigrate a political rival or encourage hatred for a minority group.
The hope in our political system is that “truth will out,” and the populace will differentiate fact from fiction. But the law sometimes has strange consequences, and those who take action to demand the truth can find themselves liable to the “liars.” Anti-SLAPP (Strategic Lawsuits Against Public Participation) statutes are designed to protect activists from costly and lengthy defamation lawsuits that have a chilling effect on protest and public discourse.
These laws, which exist in more than half the states, require judges to summarily dismiss complaints against, and grant attorneys’ fees to, defendants in certain situations, which vary from state to state. Texas, for example, has a very broad law that covers most statements concerning matters of public concern. On the other hand, the New York anti-SLAPP law applies only to statements made regarding an application for a public permit or license.
That means if a license-seeking utility company sues an environmental activist who makes a truthful claim that the utility has polluted a river, the lawsuit will be dismissed and the utility company will be ordered to pay the activist’s attorney’s fees and court costs. But anti-SLAPP statutes also award litigation costs to those whose statements may be false but are protected by the First Amendment as “rhetorical hyperbole.”
When used in this manner, anti-SLAPP statutes can repress rather than protect the truth and cheapen rather than enrich debate. After the Stormy Daniels defamation lawsuit was dismissed pursuant to the Texas anti-SLAPP law, Mr. Trump tweeted: “Great, now I can go after Horseface and her 3rd rate lawyer in the Great State of Texas.” Mr. Trump submitted a demand for $342,000. This amount may be reduced by the court, but Ms. Clifford likely will be required to pay a six-figure bill.
In the final analysis, laws can only do so much to protect us from hate-driven violence and rhetoric. Legislation can make it more difficult to buy weapons and ammunition, but hearts and minds are not converted by laws alone. We may have no legal liability for the comments we make (or do not make), the news stations we watch, the commentators we support or the politicians we elect, but as the recent violence around the nation demonstrates, these words and actions have consequences.