As a journalist, I like to think I know a little something about the First Amendment to the U.S. Constitution.
Like most students in the United States, I studied the Bill of Rights in grade school and learned the First Amendments protections by rote: freedom of speech, religion, assembly, petition and the press. (That last one is now my bread and butter.)
In later years, I dove a little deeper by reading landmark U.S. Supreme Court decisions in college like Tinker v. Des Moines Independent School District, in which the court found in 1969 that black armbands worn to protest the Vietnam War were protected symbolic speech.
That was the same year the court decided Brandenburg v. Ohio, and determined that government could not punish public speech, including that of KKK leader Clarence Brandenburg at a 1964 Klan rally, unless it is directed at inciting or producing imminent lawless action and is likely to spur such action.
Im no constitutional scholar, but I do know that protections exist even for hateful speech, the kind reported extensively in the aftermath of the white nationalist rally last weekend in Charlottesville, Va., where ensuing violence claimed the life of 32-year-old counter-protester Heather Heyer.
Even though most Americans would agree that the racist rhetoric spewed by Neo-Nazis, the KKK and other hate groups is vile and unsettling, many of us would likely also agree that it, too, must be shielded by the First Amendment to avoid creating an environment ripe for censorship and censure.
There it is, folks, the slippery-slope argument. End of story.
Well, not quite.
Im getting sort of sick and tired of all the absolute-constitutional-rights talk. Theres nothing absolute about constitutional rights, said Justin Brooks, a professor at California Western School of Law in San Diego.
Brooks said as much in a post he shared on Facebook last week, along with a photo of tiki-torch bearing white nationalists gathered on the University of Virginia campus. He added, Hate speech should not be protected speech.
The post attracted many responses and prompted a robust debate among friends and colleagues. It also prompted a call from the Union-Tribune.
Brooks said he disagrees with the U.S. Supreme Court, which has long held that there is no general exception for hate speech under the First Amendment, but has identified a few well-defined and narrowly limited exceptions that include obscenity, defamation, fraud, incitement and true threats.
(The court) has drawn the line you have to be inciting violence in order for it to be restricted, Brooks said. What bothers me about this discussion is it doesnt recognize how hurtful some of that hate speech is. At a certain point, speech can actually cause harm to individuals.
He said he understands the fear many Americans and the courts feel about the prospect of regulating hate speech, because defining it is subjective. But he argued that it is possible to draw a narrow definition that regulates public displays of hate, based on race, gender, nationality, ethnicity and sexual preference.
There is no doubt that the hate speech promoted by the KKK and Nazis causes harm to the members of our community who are targeted, Brooks said. Therefore, it is appropriate to regulate that speech.
He didnt need social media to know his views on the subject are unpopular, particularly among others in legal community. (See: slippery slope.)
Recently, the American Civil Liberties Union represented Jason Kessler, organizer of the Unite the Right rally in Charlottesville, in a lawsuit to keep the far-right groups permit to protest at a downtown park.
In response to criticism, ACLU Executive Director Anthony Romero wrote a statement explaining the nonprofits decision to represent white supremacist demonstrators in court. In it, he acknowledged that speech alone can have hurtful consequences, but argued that the airing of hateful speech allows people of good will to confront the implications of such speech and reject bigotry, discrimination and hate.
Preventing the government from controlling speech is absolutely necessary to the promotion of equality, he wrote.
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