Can the Government Prohibit Hate Speech Which “Tends Toward” Violence?

December 24, 2015

In light of the recent terrorist shooting in San Bernardino, California, the U.S. Attorney General announced that anti-Muslim rhetoric which “tends toward violence” would be prosecuted. Many have asked, “Can they do that without violating the First Amendment?” The clear answer from the Supreme Court is “No.”

While the right of Free Speech does not protect a deliberate call to imminent unlawful violence, it does protect derogatory remarks about groups of people and it even protects advocating violence or other violations of the law in general terms. The Government may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Brandenburg v. Ohio (1969), the Supreme Court overturned the conviction of a KKK leader who stated at a rally that “there might have to be some revengeance taken.”

In Hess v. Indiana (1973), the Supreme Court reversed the conviction of an anti-war protestor who had been arrested for saying that they would take to the streets again when the Sheriff’s office dispersed the crowd. The Court stated that since there was no evidence that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a “tendency to lead to violence.”

The Supreme Court gave this summary in Ashcroft v. Free Speech Coalition (2002): “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. To preserve these freedoms, and to protect speech for its own sake, the Court’s First Amendment cases draw vital distinctions between words and deeds, between ideas and conduct. …The government may not prohibit speech because it increases the chance an unlawful act will be committed ‘at some indefinite future time.’”

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