The First Amendment of the United States guarantees individuals the right to freedom of speech and expression, even if that speech or form of expression is unpopular, offensive or immoral. However, there is a point where certain speech is no longer protected under the First Amendment. If the speech constitutes a “true threat,” meaning that it is reasonable to assume that the speech could provoke physical harm against an individual or group, the speech is no longer protected (Goldman, 2013, p. 412). What Goldman refers to as the “true threat doctrine” (2013, p. 411) is not the same as hate speech. To paraphrase Samuel Walker, author of the book Hate Speech (1994), hate speech is any form of communication that attacks or is offensive to an individual or group based on race, ethnicity, orientation, gender or religion (p. 8). However, while most other countries have laws against hate speech, America defends it as long as there is no potential for producing “imminent lawless actions” (p. 4). It is this distinction that allows the students in question to pass out flyers and T-shirts with anti-gay and lesbian slogans and depending on how they are advocating violence, be protected in that regard also.
Assuming the event is taking place on public property, the students can certainly be there and advocate for any viewpoint they see fit, no matter the popularity of their stance. Their demonstration is protected in more than one way, the First Amendment protects what they are saying (speech), their right to say it in a collective (assembly) and depending on how they are defending their opinion, their right to free exercise of religion. If the group is arguing from a religious perspective, they may already be defensive about not only the issue, but expressing their opinion on the issue. Since the newest legal definition as used by the FBI includes sexual orientation as a bias that might provoke a hate crime (Hate crime overview, 2012), some religious bodies have become worried that speaking against gay or lesbian lifestyles on a doctrinal basis might invite prosecution (Lowe, 2010, p. 92). In spite of this fear, Americans enjoy the right to speak on any side of any controversial issue, without fear of persecution or prosecution, because of the First Amendment. It is only when that speech insights crime that is violent against a person or property (Hate crime overview, 2012) that it is no longer legally protected. Therefore, despite the offensive nature of their message, the group is free to express and share it, just as a group with any other message would be able to do.
The issue of unquestioned protection under the First Amendment is not as easily answered when the group begins advocating violence against gays and lesbians. Whether the First Amendment measurement of “directed…or producing imminent lawless action” (Walker, 1994) is met depends on what the group is saying, how the group is saying it, and to some extent, how it is being received by those around them. For example, if the group is promoting violence in the same style and tone of a schoolyard threat (“Get out, or we will make you”), the group, though acting tastelessly, would probably not be considered an imminent or credible threat. The declaration is too vague and lacks intent of execution.
Ultimately, the verbal threats by the group in this case would be considered empty taunts and the group would be permitted to carry on with their public protest. However, if the threats and advocacy of violence were to continue or escalate, revealing more details or revealing what could be a more executable plan, then the First Amendment would not protect them, since their threat becomes a real potential for danger. In addition, if the attitude of the protest crowd began to change or the crowd becomes more agitated or intimidating, authorities could deem them a threat to gay and straight citizens in the area. In such cases, the threats of violence would be promoting a real potential for violent actions in the very near future, as opposed to hypothetical lawless actions, or lawless actions that could take place at an undetermined time in the future.
A scenario that the protest group would be careful to avoid would be accidentally inciting a violent incident either at the time of the protest or in the future. By making violent statements or statements promoting violence towards gays and lesbians, the group opens itself up for possible liability should a suspect accuse them of promoting the offence. Ideally, the group would refrain from making any statement referencing violence to ensure that the First Amendment continues to protect their speech, and that everyone remains safe. However, since the group chose to begin making those violent statements, how far those statements go towards promoting violence determines the level of protection granted to the group and it’s right to free speech under the First Amendment.
Unprotected hate speech is similar to pornography or obscenity. While there is a technical definition, the undeniable standard for protection is as Justice Potter Stewart famously stated in the Jacobellis vs. Ohio majority opinion, “…perhaps I could never succeed in doing so [defining it]. But I know it when I see it” (1964). Hate speech and obscenities are both constantly fluid concepts, making a technical definition often obsolete within years of publishing. Ultimately though, a Supreme Court case from 1969 created the standardized test for determining if hate speech is protected under the First Amendment or not. The Brandenburg test asks whether the speech in question is intended to “produce a high likelihood of real imminent harm” (Peck, 2013). While advocating for violence to happen eventually or implying that violence may be the answer is protected speech, advocating for violence against a person (such as assault or homicide) or violence against property (as in the cases of arson or vandalism) to happen immediately or soon following the call for violence puts other people’s wellbeing at risk and violates their rights to life and safety and therefore, is not protected under the First Amendment. In addition, giving an exact time or place for violence to take place in the future, such as “during the rally next week,” or “Tuesday, the 15th at noon,” implies forethought, organization and real intent or potential to carry out the violent threats and is not protected either. Therefore, without knowing what exactly the group in this particular scenario is saying, how they are saying it, and how they are being received, it is impossible to know if what they are saying is illegal. It is certain, however, sharing the opinions themselves is legal and protected, so that even though what they are saying may be unpopular, hurtful and offensive, the group is exercising its First Amendment rights by saying such things.
- Goldman, L. (2013). Student speech and the First Amendment: A comprehensive approach. Florida Law Review, 63(2), 396-430. Retrieved July 17, 2013, from http://scholarship.law.ufl.edu/flr/vol63/iss2
- Hate crime overview. (2012). FBI. Retrieved on July 27, 2013, from http://www.fbi.gov/about-us/investigate/civilrights/hate_crimes/overview
- Jacobellis v. Ohio. (1964). United States Supreme Court. 378 US 184. Retrieved on July 28, 2013 from http://www.law.cornell.edu/
- Lowe, M. E. (2010). When faith speech turns to gay hate speech. Dialogue: A Journal of Theology, 49(2), 91-93. Retrieved July 27, 2013, from the EBSCOhost database.
- Peck, R. (2013, July 6). The First Amendment & advocacy of violence: An overview – First Amendment library. Google cache. Retrieved July 18, 2013, from Peck, R. (2013, July 6). The First Amendment & advocacy of violence: An overview – First Amendment library. Google cache. Retrieved July 18, 2013, from http://webcache.googleusercontent.com/search?q=cache:tBnRQXJYZOcJ:archive.firstamen
- Walker, S. (1994). Hate speech in American history. Hate speech: the history of an American controversy (pp. 1-16). Lincoln: University of Nebraska Press.