Fighting Words & Hate Speech Limits to the Freedom of Speech

Fighting Words Words spoken face-to-face that are so abusive or threatening, they will likely cause imminent fight Do not convey ideas or contribute to marketplace of ideas Value outweighed by society’s interest in maintaining order HOWEVER, courts rarely use fighting words doctrine today Even offensive, provocative speech protected generally protected

Offensive speakers & hostile audiences Also face-to-face speech Police action may depend on whether audience is friendly or hostile toward speaker Prior to 1950s, courts used “clear and present danger test” Examined circumstances to see if clear and present danger existed Harm didn’t have to occur immediately after speech

Dennis v. united states (1951) Defendants convicted for attempting to organize U.S. Communist Party Goal to overthrow U.S. gov’t Instead of clear and present danger test, SCOTUS used different balancing test Balanced right of speaker & harm speaker proposed When speech advocated VERY serious acts, SCOTUS required less proof of clear and present danger

Brandenburg v. Ohio (1969) SCOTUS began using incitement test for cases in which speaker urged audiences to take unlawful action Allows gov’t to punish advocacy only when it provokes immediate unlawful action from audience Audience action must be likely Unlike clear and present danger test, incitement test requires unlawful action to be likely within short period of time

Hate speech Bigoted or racist speech attacking or disparaging social or ethnic group or its members General examples: KKK Rally Westboro Baptist Church Neo-Nazis Holocaust Deniers Anti-Islamic Groups

Should Hate Speech Be Punished? Those who support punishment for hate speech argue… Measures should be taken due to emotional & psychological toll on victims Hate speech = fighting words Does not qualify for First Amendment protections Others argue speech codes… Are well-intentioned, but vague & difficult to enforce Put gov’t in censorship business—favoring certain content or viewpoints & disfavoring others Violate 1st Amendment

Colleges & “Safe Spaces” Several universities have established “safe spaces” Spaces where individuals who feel marginalized come together to communicate experiences Cancel controversial speakers Create rooms filled with coloring books, bubbles, Play-Doh, etc. to “recuperate” Punish controversial speech in outdoor areas

Snyder v. Phelps (2011) SCOTUS confronts issue of whether hateful speech receives First Amendment protection Westboro Baptist Church pickets funeral of fallen Marine Held up signs reading “Thank God for Dead Soldiers” and “America is Doomed” Father of soldier saw tops of signs as he left funeral Found out content of signs on news Sued Westboro, claiming extreme emotional distress http://www.youtube.com/watch?v=OBA6qlHW8po

Snyder v. Phelps (2011) SCOTUS sided with Westboro Baptist Church Even though speech offensive, it was speech pertaining to public issues Entitled highest degree of 1st Amendment protection However, SCOTUS upheld hate crimes Provides enhanced sentencing for bias-motivated crimes