What's protected by the First Amendment, and what isn't?
Lily HermanFEB 3, 2017 3:12PM EST
On Wednesday, students at the University of California, Berkeley, protested a planned campus appearance by Milo Yiannapoulos, an editor at Breitbart News, a favorite platform of the "alt-right" (AKA white nationalists); the event turned violent when an anarchist group began to destroy property and set fires. Protesters objected to Yiannapoulos's notorious online bullying and sexist remarks; UC Berkeley's administration said in an official statement, that he would be allowed to speak because "UC Berkeley is bound by the Constitution, the law and the university’s values and Principles of Community, which include the enabling of free expression across the full spectrum of opinion and perspective." Ultimately, though, the event was canceled just hours before it was supposed to take place due to "concern for public safety."
The incident, as well as clashes like it in the past, brought up questions about what free speech is and what's protected under the First Amendment. If someone like Yiannopoulos, whose vitriolic trolling campaigns include targeting Ghostbusters star Leslie Jones to the point where he got himself banned from Twitter, is there any way to curb that speech if it discriminates against people's identity, like race? And when does that speech become punishable under the law? Here's what you need to know about the freedom speech as well as how to deal with hate speech in the current political climate.
What's free speech?
Free speech is part of the First Amendment of the U.S. Constitution. In addition to allowing for freedom of religion, the First Amendment also allows for the freedom of expression. This includes freedom for the press to say what it would like, freedom for citizens to say what they'd like, and freedom for Americans to assemble, like petitioning the government or protesting peacefully.
More specifically, freedom of speech allows U.S. citizens to say or articulate their thoughts or feelings without having to worry about government censorship or other punishments on behalf of the state. In contrast to the U.S., countries that don't have fully "free" speech may censor certain materials (like specific web pages, websites, television programs, books, or films), especially those that go against the state's message. In extreme cases, those who don't follow government censorship sanctions in these nations can be charged with committing a crime and punished.
What's hate speech?
Hate speech is when a person or a group of people is attacked based on factors such as their gender, race, sexual orientation, religion, or disability. According to the Centers for Educational Justice & Community Engagement at the University of California Berkeley, hate speech includes written and verbal communication.
Of course, where the First Amendment becomes tricky is when it comes to people who have discriminatory ideologies against others, as they are also protected under the law. For example, one can vehemently disagree with the views of the Ku Klux Klan, which believes in white supremacy, but unless members of the Klan act on those words, their speech and right to assemble is protected under the Constitution.
When does hate speech become a crime?
Given that even hate speech is seen as a right, it's been largely protected in the courts. Some college campuses, for example, have tried to implement "speech codes," typically with good intentions of making campuses inclusive and ridding them of discriminatory language. In court, however, these acts have typically been found unconstitutional, as they violate the First Amendment and the right for people to speak freely.
While typically hate speech has to be acted on to turn into a crime, there is a special exception called the "fighting words" clause, which stipulates that if someone uses words to "incite an immediate breach of peace", then it's no longer protected. The example the ACLU gives is if a white student directed a racial slur at a black student, one could argue that the person did so as a means of racial harassment. This reasoning, however, hasn't been argued in the Supreme Court before, so it's hard to tell if it would be successful in the future.
Additionally, hate speech can violate certain freedom of speech laws like slander (trying to damage someone's reputation with false spoken words) or libel (trying to damage someone's reputation through writing). In some cases, hate speech could also violate rules as technical as copyright violations or non-disclosure agreements depending on how and where those opinions are articulated.
That said, law enforcement groups like the FBI as well as numerous independent organizations do keep track of reports of hate speech and similar hate incidents, especially if there's potential for them to turn into actions.
How can people act against hate speech?
This is a question that has long been up for debate throughout American history, and it's only becoming more and more prevalent during the Trump era. Any hate speech is in fact protected under the First Amendment, and those who try to interfere with it through actions or violence are legally violating someone's right to free speech, regardless if one believes interfering is "morally" right.
Organizations like the ACLU recommend that instead of trying to outright ban hate speech and risk a lawsuit, it's better to add more speech to the conversation. This is also the same principle behind reaching out to government representatives on the local, state, and federal levels to make sure your voice is heard. It's also why many people protest, exercising their First Amendment right to do so.
Additionally, each person has the valuable opportunity to educate others who use hate speech. If you're unsure of how to combat discrimination in everyday life, the Southern Poverty Law Center has a helpful guide for how to respond to bigotry in daily life through legal and protected means.