Hate Speech and Freedom of Speech
Hate speech and free speech have definitions that we all need to live with. Here’s a quick review of the current law:
Freedom of speech includes the right:
- Not to speak (specifically, the right not to salute the flag).
West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
- Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
Tinker v. Des Moines, 393 U.S. 503 (1969).
- To use certain offensive words and phrases to convey political messages.
Cohen v. California, 403 U.S. 15 (1971).
- To contribute money (under certain circumstances) to political campaigns.
Buckley v. Valeo, 424 U.S. 1 (1976).
- To advertise commercial products and professional services (with some restrictions).
Virginia Board of Pharmacy v. Virginia Consumer Council, 425 U.S. 748 (1976); Bates v. State Bar of Arizona, 433 U.S. 350 (1977).
- To engage in symbolic speech, (e.g., burning the flag in protest).
Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).
Freedom of speech does not include the right:
- To incite actions that would harm others (e.g., “[S]hout[ing] ‘fire’ in a crowded theater.”).
Schenck v. United States,249 U.S. 47 (1919).
- To make or distribute obscene materials.
Roth v. United States, 354 U.S. 476 (1957).
- To burn draft cards as an anti-war protest.
United States v. O’Brien, 391 U.S. 367 (1968).
- To permit students to print articles in a school newspaper over the objections of the school administration.
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
- Of students to make an obscene speech at a school-sponsored event.
Bethel School District #43 v. Fraser, 478 U.S. 675 (1986).
- Of students to advocate illegal drug use at a school-sponsored event.
Morse v. Frederick, __ U.S. __(2007)
There’s a big grey area between saying hateful ideas and encouraging harm to others. One cannot wear a button saying, “Kill a Mexican today,” but one can wear a button that says, “Boycott the Taco Truck.”
I rose to the bait in Boston last summer; I counter-demonstrated at the hate-group’s free speech rally. I hated the words of the Flag Lady, who I followed around the counter-demonstration. But, she was not speaking hate, she was being hateful and offensive. When the neo-Nazis came back again in November, they drew a small audience of about twice their number — there were about 75 of them each time. Most of the participants in the November counter-demonstrators were legal observers. Free, but hateful, speech was spoken.
The event was one big yawn. As it should be. If someone spreads hate and no one hears it, did he make a point? I hope not.
Next week, I will be writing about a man who lost his job because of his politics. Nazi Bob lost his job when people in York, Pennsylvania saw his picture in a group of Nazis in Charlottesville. Would you fire him, were you his boss? Would you choose another delivery service if he worked in your town?
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