Quote:
Originally Posted by Bullitt
Stating you think someone should be killed, and actually plotting such a thing, are two very different things. Stating it is protected under the 1st Amendment. Not a hate crime. See Westboro Baptist Church as an example. Or the KKK. Sorry. Hate is ugly, but it's the other side of the free speech coin.
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From:
http://www.csulb.edu/~jvancamp/freedom1.html
(There is a greater discussion of these issues at the link.
Exceptions established by the courts to the First Amendment protections include the following:
Defamation | Causing panic | Fighting words | Incitement to crime | Sedition | Obscenity
(1) Defamation: Defamation consists of a publication of a statement of alleged fact which is false and which harms the reputation of another person.
(1) Our right to freedom of expression is restricted when our expressions (whether a spoken slander or written libel) cause harm to the reputation of another person. The courts recognize that words can hurt us, for example, by harming our ability to earn a living (economic harm).
This exception to freedom of expression can be difficult to apply in practice. Defamation requires an allegation of a fact which is in fact false. In contrast, the expression of an opinion is not considered defamation.
(2) Causing panic: The classic example of speech which is not protected by the First Amendment, because it causes panic, is falsely shouting "fire" in a crowded theater. (2) This is narrowly limited to situations in which a reasonable person would know that it was very likely that his or her speech would really cause harm to others. We can imagine works of art which might cause real panic among the audience, perhaps a contemporary version of Orson Welles' War of the Worlds, which caused considerable panic when it first aired on the radio, and in turn was based on H.G. Wells The War of the Worlds.
(3) Fighting words: In the famous case of Chaplinsky v. New Hampshire, the U.S. Supreme Court held that the First Amendment does not protect "fighting words -- those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." (315 U.S. 568, 572 [1942]) This famous exception is much discussed in recent decades, but rarely the basis for a decision upholding an abridgement of free speech.
This exception warrants scrutiny. Note that the harm involved is physical harm caused by someone else who was provoked by the speaker whose speech is being suppressed. The fact that someone else flies into a rage and causes physical harm results in justifying suppression of speech by another person!
(4) Incitement to crime: It is a crime to incite someone else to commit a crime, and such speech is not protected by the First Amendment.
If a budding rap group proposes to perform a work which includes the exhortation to "kill whitie" or "kill the cops" or "rape the babe," could that be incitement to a crime? Such records have been sold by commercial organizations, of course, yet there are no reported arrests of those artists or record companies for incitement to a crime. Should such rap lyrics be considered incitement to crime or is the causal relationship to any actual murders or rapes too tenuous?
(5) Sedition: Although not without controversy, the U.S. Supreme Court has upheld statutes which prohibit the advocacy of unlawful conduct against the government or the violent overthrow of the government. As with prohibitions discussed earlier, the expressions in question are assessed according to the circumstances. Academic discussion of the theories of, say, Karl Marx presumably would not be prohibited under such a test, especially in this post-Soviet era. The theoretical consideration and even endorsement of these views could not remotely be considered to be reasonable expectations of the actual overthrow of the government. But it is possible that an artist might develop a project, perhaps guerrilla theater or an exhibit, that urged the destruction of the United States (the "Great Satan") by extremist religious groups. The likelihood of success by the latter group would seem as improbable as the likelihood of success by contemporary Marxists.
(6) Obscenity: In Miller v. California (413 U.S. 14 [1973]) the U.S. Supreme Court established a three-pronged test for obscenity prohibitions which would not violate the First Amendment:
(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Although much debated, this standard remains the law of the land, and elements of this language have been included in both the authorizing legislation for the National Endowment for the Arts (20 U.S.C. 951 et seq.) and the Communications Decency Act (4) prohibiting "obscenity" and "indecency" on the Internet. The Communications Decency Act was struck down as unconstitutional by the U.S. Supreme Court in June 1997. The NEA legislation was been struck down as unconstitutional by lower courts but was upheld by the U.S. Supreme Court in 1998. (NEA v. Finley, No. 97-371, 1998)
One controversy over this exception to free speech is whether obscenity causes real harm sufficient to justify suppression of free speech. Does viewing obscenity make it more likely that a man will later commit rape, or other acts of violence against women, obviously real harm to another person? Does reading about war make it more likely that someone will start a war? Even if there is some evidence of such causal relationships, however tenuous or strong, is it sufficient to justify this exception to free speech? Alternatively, could the prohibition on obscenity be a reflection of moral values and societal standards which should more properly be handled in the private sector through moral education, not government censorship?
Another problem area is determining what counts as "obscenity". In Miller, the court tried to fashion a standard which could be adapted to different communities, so that what counts as obscenity in rural Mississippi might not count as obscenity in Atlanta or New York City. Is this fair? Do the people in those areas themselves agree on community standards? What is the "community" for art that is displayed on-line on the Internet?
Another controversy in the Miller standard is the exception for "serious literary, artistic, political or scientific value." Who decides what counts as "serious"? If some people consider Penthouse or the National Enquirer to be serious literature, is it elitist to deny them this exception from censorship as "obscenity"? Given the controversies in contemporary art (found objects, performance art, and so forth), what counts as artistic value? Has the Court solved the problem of defining "obscenity" or only made it more complicated?