No, there’s no “hate speech” exception to the First Amendment

[Not water]

Washington Post

By Eugene Volokh May 7
I keep hearing about a supposed “hate speech” exception to the First Amendment, or statements such as, “This isn’t free speech, it’s hate speech,” or “When does free speech stop and hate speech begin?” But there is no hate speech exception to the First Amendment. Hateful ideas (whatever exactly that might mean) are just as protected under the First Amendment as other ideas. One is as free to condemn Islam — or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens — as one is to condemn capitalism or Socialism or Democrats or Republicans.

To be sure, there are some kinds of speech that are unprotected by the First Amendment. But those narrow exceptions have nothing to do with “hate speech” in any conventionally used sense of the term. For instance, there is an exception for “fighting words” — face-to-face personal insults addressed to a specific person, of the sort that are likely to start an immediate fight. But this exception isn’t limited to racial or religious insults, nor does it cover all racially or religiously offensive statements. Indeed, when the City of St. Paul tried to specifically punish bigoted fighting words, the Supreme Court held that this selective prohibition was unconstitutional (R.A.V. v. City of St. Paul (1992)), even though a broad ban on all fighting words would indeed be permissible. (And, notwithstanding CNN anchor Chris Cuomo’s Tweet that “hate speech is excluded from protection,” and his later claims that by “hate speech” he means “fighting words,” the fighting words exception is not generally labeled a “hate speech” exception, and isn’t coextensive with any established definition of “hate speech” that I know of.)
http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theres-no-hate-speech-exception-to-the-first-amendment/

[shenmue]

1. True

But even the First Amendment does not cover certain things: death threats, incitement to riot, yelling "Fire!" in a crowded theater, and so forth.

[reddread]

3. well, no not exactly true, but

if you can reconcile "hate speech" and "free speech"
you are a better, freer citizen than I.

[NutmegYankee]

7. It does cover yelling fire in a theater.

That is a common misconception - the current standard (Brandenburg v. Ohio) is that the speech must incite imminent lawless action to be banned. Yelling fire in a theater came from the Schenck v. United States case, which gave the government the power to regulate speech against the draft during World War I (this would be considered a horrible decision in modern day).

[NuclearDem]

9. And people also seem to forget the qualifier for that phrase

Falsely shouting fire in a theater.

[Exilednight]

31. True, but the reasoning behind it is sound. If someone

Yelled fire in a crowded theatre, and there is no fire, but someone is injured or killed, then the person yelling it could be held accountable.

My understanding is that it has to be speech that would cause people to react in a way that could hurt fellow citizens.

[Yo_Mama]

116. No, it has to be a lot more direct than that.

One can argue that almost any meaningful speech might cause someone to react in a way that could hurt fellow citizens.

[beam me up scottie]

2. k&r

Welcome to DU!

[seveneyes]

4. Hateful acts like beheading people, raping people, murdering people

Should have every hateful speech aimed their way.

[840high]

30. +10

[iandhr]

51. Thank you

It is amazing that someone actually asked to order those words out loud

[reddread]

5. 1st Amendment doesnt mean a thing

without the 4th.

[DonViejo]

6. The author has an interesting biography...

Eugene Volokh (Ukrainian: Євге́н Володимирович Волох Yevhen Volodymyrovych Volokh,[2] Russian: Евге́ний Влади́мирович Во́лох Yevgeniy Vladimirovich Volokh; born February 29, 1968) is an American law professor, the Gary T. Schwartz Professor of Law at the UCLA School of Law. He publishes the blog "The Volokh Conspiracy". He is an academic affiliate of the law firm Mayer Brown.[3]
-snip-

Volokh was born in to a Jewish family residing in Kiev, Ukraine, then part of the Soviet Union.[4][5] He emigrated with his family to the United States at the age of seven. At the age of 12, he began working as a computer programmer. He attended the Hampshire College Summer Studies in Mathematics.[6] At the age of 15, he received a Bachelor of Science degree in Math and Computer Science from UCLA. As a junior at UCLA, he earned $480 a week as a programmer for 20th Century Fox.[7] During this period, his achievements were featured in an episode of OMNI: The New Frontier, a television series hosted by Peter Ustinov.[8]

In 1992, Volokh received a Juris Doctor degree from the UCLA School of Law. He was a law clerk for Judge Alex Kozinski of the Ninth Circuit Court of Appeals and later for Justice Sandra Day O'Connor of the U.S. Supreme Court. Since finishing his clerkships, he has been on the faculty for the UCLA School of Law where he is the Gary T. Schwartz Professor of Law.

-snip-

Volokh supported former Tennessee Senator Fred Thompson in the 2008 presidential election, saying Thompson had good instincts on legal issues and that he preferred Thompson's positions on the First Amendment and political speech to McCain's sponsorship of campaign finance reform. Volokh also liked Thompson's position in favor of individual gun ownership.[9] Volokh also noted that Thompson "takes federalism seriously, and he seems to have a fairly deep-seated sense that there is a real difference between state and federal power."[9]

-snip-

Volokh's article about "The Commonplace Second Amendment",[10] was cited by Supreme Court Justice Antonin Scalia's majority opinion in the landmark Second Amendment case of District of Columbia v. Heller.[11] Volokh advocates campus speech rights, religious freedom, and other First Amendment issues. He opposes affirmative action, having worked as a legal advisor to California's Proposition 209 campaign. Volokh is a critic of what he sees as the overly broad operation of American workplace harassment laws, including those relating to sexual harassment.[citation needed]

On his weblog, Volokh addresses a wide variety of issues, with a focus on politics and law.
Volokh's non-academic work has been published in The Wall Street Journal, Los Angeles Times, The New York Times, Slate, and other publications. Since May 2005 he has been a contributing blogger at The Huffington Post.

-snip-

http://en.wikipedia.org/wiki/Eugene_Volokh

[merrily]

82. So do the RW Scotus Justices.

[DonViejo]

104. Yes, the justices he used to write decisions for and who use his writings to make

their "intelligent" decisions, Scalia.

[guillaumeb]

8. Pamela Geller specializes in incitement.

She uses hateful speech and gross stereotyping but her primary goal is incitement. And incitement is NOT protected speech. As another poster already said, look up Brandenberg v. Ohio 395 US 444 (1969)for the SCOTUS definition of incitement and why it is NOT protected speech.

[beam me up scottie]

11. How is what she did any different than any other hate group?

[guillaumeb]

16. Many hate groups and speakers use the same tactics.

But my point is that incitement is NOT protected speech, and thus a First Amendment defense fails. There was a case where the KKK wanted to march in a heavily Jewish suburb of Chicago. They were denied a permit, but won on appeal. At the march, they did not try to provoke a riot.

Geller seeks to provoke wherever she goes.

[Bluenorthwest]

19. How does she differ from Westboro Baptist, which took it's attacks directly to the victims and did

so hundreds of times for years and years, in all 50 United States without so much as a peep from the rest of you straights of suspiciously situational ethics? Was that protected because it's ok to do that to gay people but not to Muslims? What the fuck are you saying?

[guillaumeb]

21. Show me where the Westboro baptist Church called for attacks on gays,

or otherwise incited to violence. WBC picketed many funerals of soldiers, carrying disgusting posters, supposedly to protest equal rights.

Incitement is not protected speech.

[beam me up scottie]

24. When did Geller tell her followers to attack muslims?

[guillaumeb]

27. check my post 23

Geller, like Sarah Palin, does not directly say, "Kill Muslims", or in the case of Palin, "Kill certain congress people". They know how far they should go. The anti-abortion movement has perfected this technique of almost saying to their followers to kill abortion providers.

Sorry, I do not accept the argument that these verbal terrorists do not intend to provoke violence.

[beam me up scottie]

29. What would you prevent her from saying or doing?

I do not accept that the KKK and Westboro Baptist groups did anything different than Geller.

The only difference is who they were targeting.

[Bluenorthwest]

36. And yet you just said this when asked how she differs from Westboro Baptist:

"Show me where the Westboro baptist Church called for attacks on gays, or otherwise incited to violence."

You are twisting yourself into a pretzel to avoid saying what you mean. So Geller also did not call for attacks, she is just as I said, the same as Westboro.
The difference is that LGBT culture is superior to the religious folks who go grab guns when baited by bigots.

[guillaumeb]

47. Geller is smart enough to know how far she can go.

She knows that if she calls for violence that becomes incitement. So, like some anti-abortion groups, she skirts the issue. In the Garland Texas case, she is aware of how the cartoon situation turned out in Denmark and France. She sponsored a contest to provoke a reaction. She can claim that she did not intend for a violent response.

And some here apparently believe her.

I do not.

[beam me up scottie]

50. No, we just don't believe islam deserves special treatment.

Apparently you do.

Otherwise you wouldn't be arguing that what she did is so much worse than other hate groups.

[beam me up scottie]

25. "incited to violence"?

The people who were "incited to violence" were the shooters, not her followers.

That's on them, not the person who provokes their anger.

[Bluenorthwest]

32. You tell me that the shit on their picket signs was not incitement? Are you serious?

If they show up at a Muslim funeral with signs saying 'God Hates Muslims' would that be 'not incitement' as well? They were not 'protesting equal rights' they were protesting our very existence, they were coming to funerals with signs that said 'You are going to hell' and 'Thank God for AIDS' and 'God Hates You'.
What you want is for religion to be perfectly free to rant and rage and denigrate others while themselves being protected from any criticism, insult, joke or parody.

[beam me up scottie]

34. I guess you were right, Blue. It is different when it's about lgbt people.

Religious ideology is something you choose, unlike sexual orientation.

But apparently having a cartoon contest about someone's prophet is SO much worse than saying you deserve AIDS.

Disgusting.

[Bluenorthwest]

38. The people pulling this 'religion must not be insulted' shit all get very angry when asked about

Phelps, and why they let that shit go on for years if they are so opposed to that sort of shit. They clam up and get very testy. Because they are chocking on their own hypocrisy.

[beam me up scottie]

42. If Geller had hidden behind religion they wouldn't be freaking out like this.

Apparently hate speech is okay if it's part of your religion.

[Bluenorthwest]

46. That is the fact.

Or if she'd chosen LGBT as her targets, then they would be sanguine, apathetic, making funny joke threads about it all. Today alone there were threads about anti gay billboards, laws, politicians and preachers and physical attacks all over DU. The people who are 'against hate speech' really don't work up much froth about any of that.

[beam me up scottie]

48. They're too busy telling us we support Geller.

Once they're done using this issue as an excuse to slander people who criticize religion they'll go back to not giving a shit about hate speech.

[PeaceNikki]

49. No, they'll go right back to DEFENDING hate speech wrapped in dogma.

Ugh

[beam me up scottie]

52. All right, now it's ON.

PeaceNikki is in da house!

[PeaceNikki]

55. Stop reading my thoughts! I see your drones!

[Bluenorthwest]

57. If they wanted to defeat Geller, they'd shut the fuck up and take lessons. Who ya gunna call?

Phelps Busters. They are doomed to failure, they don't know who their friends are.

[PeaceNikki]

61. Some here are so obsessively defensive of Islam and Christianity that it blinds all sense of reason.

Then they have the fucking gall to poke fun at Scientology?

Wow.

Christianity and Islam are directly involved with trying to limit our autonomy. I will mock and criticize as much as I please.

Committing violent acts and restricting our autonomy vs "not being nice!" ??

[Warren Stupidity]

99. Not an incitement as per the law.

You are conflating the common usage of incitement with the specific requirements of the brandenburg test. You have to urge people to go out right now and commit an illegal act, you have to do so knowingly, and it has to be credible that people will act on your demands. Showing up at a funeral with a sign saying "God Hates Muslims" doesn't meet any of those tests. Not even one.

[merrily]

83. There were counter protests in which heteros particpated, even school kids, but not enough.

[Bluenorthwest]

121. This was eventually true, but it took years and it was in fact a school kid whose counter picket

first gave me hope for America. She stood there with a sign that said 'We Forgive You Fred'. Beautiful.

[merrily]

129. Again, nowhere near enough, but there were

motorcyclists who attended funerals of gay troops and also another group that stood along the procession route wearing white garments with big sleeves, holding up their arms to form something that looked like angels' wings. The idea was to hide the Phelps demonstrators from loved ones in cars on the way to the cemetery.

[beam me up scottie]

20. How do you know they didn't "try to provoke a riot" but Geller did?

What tactics did she use that makes her provocation different?

[guillaumeb]

23. Geller saw what happened in Denmark and France.

She used the same tactics as were used in the two countries, and I believe she hoped for and expected the same reaction.

[beam me up scottie]

28. What tactics did she use that should be prohibited?

[notadmblnd]

37. there may be nothing criminally she can be charged with

But if I were the security guard that was shot, I'd be be seeing an attorney and suing the shit out of her organization for knowingly putting him in danger. Especially if she neglected to inform him that there had been threats.

[beam me up scottie]

40. Thank you.

My point is that nothing she did was any worse than any other hate group whose speech is protected by the 1st Amendment.

Until and unless hate speech becomes illegal she has the right to keep doing what she's doing.

[GGJohn]

43. The Garland Police knew of the threats, the FBI had notified them of numerous threats

including from those 2 asshole terrorists, hence the heavy security, you can bet the farm that all security personnel knew of the threat.

[notadmblnd]

33. The guy in Denmark was inspired by Geller.

Geller was one of several prominent anti-Muslim activists cited by the Norwegian terrorist Anders Breivik in the manifesto he posted online hours before killing 77 of his countrymen, mostly teenagers, at a left-wing youth camp in August 2011. In the wake of the attack, Geller downplayed the influence of her views on Breivik, making much of the fact that his screed had only mentioned her by name once. This conveniently ignored the manifesto’s dozen citations of her blog and 64 mentions of her SIOA partner, Robert Spencer. At the same time, Geller couldn’t help displaying some sympathy for Breivik’s actions against the young multiculturalists. “Breivik,” she wrote, “was targeting the future leaders of the party responsible for flooding Norway with Muslims.”[/div class="excerpt"]


much, much more about Ms Geller from the SPLC..... http://www.splcenter.org/get-informed/intelligence-files/profiles/pamela-geller

[Warren Stupidity]

97. Except of course that the limits on "incitement" are quite specific.

You have to be explicitly urging people to commit imminent lawless action as per Brandenburg. The Brandenburg test: intent, imminence, and likelihood remains the defining criteria for incitement.

[GGJohn]

14. Sorry, but Ms. Geller didn't incite those 2 asswipes to attack that event,

that's all on them and they paid the ultimate price their assholery.

[guillaumeb]

17. So you feel Geller had zero intent to provoke?

She is just a big fan of cartoon contests?

How about her ads for the buses in New York? Also no intent to provoke?
http://forward.com/news/breaking-news/216626/pamela-geller-anti-islam-bus-ads-coming-to-philade/


Read more about Geller:

Most Recent Group: Stop Islamization of America

Ideology: Anti-Muslim

Pamela Geller is the anti-Muslim movement's most visible and flamboyant figurehead. She's relentlessly shrill and coarse in her broad-brush denunciations of Islam and makes preposterous claims, such as that President Obama is the "love child" of Malcolm X. She makes no pretense of being learned in Islamic studies, leaving the argumentative heavy lifting to her Stop Islamization of America partner Robert Spencer. Geller has mingled comfortably with European racists and fascists, spoken favorably of South African racists, defended Serbian war criminal Radovan Karadzic and denied the existence of Serbian concentration camps. She has taken a strong pro-Israel stance to the point of being sharply critical of Jewish liberals.
the link:
http://www.splcenter.org/get-informed/intelligence-files/profiles/pamela-geller

[beam me up scottie]

22. Have you read some of the stuff Westboro Baptist says about lgbt people?

Why is her brand of hate different?

[Behind the Aegis]

89. Makes you wonder, doesn't it?

Seems quite "provocative" to me, especially as a gay and a Jew. Apparently some groups are "worthy" of being offended because...well, the 1stA.

[beam me up scottie]

90. And lawd knows they never incited any violence...

Right?

[Behind the Aegis]

91. What would be REALLY interesting...

...go back and see various opinions on things such as the Holocaust cartoon contest in Iran (part 1 (2005) and the part 2 (this month)) and the reprinting of the Mein Kampf.

[beam me up scottie]

92. I don't think that would be healthy.

I worry about both of us.

[Behind the Aegis]

93. I know what you mean, but I did write this...

44. Quite possible.

However, the neo-Nazi movement is already in full swing in Germany, like other places, but it doesn't have much power, or really in state power.

I don't think the book should be banned. The idea they are making notes is interesting and might make that piece of drek readable. Banning books or making them PC (as is happening in some places) is akin to re-writing history.
http://www.democraticunderground.com/?com=view_post&forum=1014&pid=1023704

I seriously doubt anyone would accuse me of supporting Hitler, but then again....

[beam me up scottie]

94. That is very good, a perspective from someone who knows what it's like to be targeted.

and yeah, you do need a disclaimer on every post around here.

I and others were accused of "cheering" Geller because we "championed" her 1st Amendment rights.

[NobodyHere]

123. But they have incited some amusing responses

Enjoy the "hate" speech

http://comicsalliance.com/super-heroes-vs-the-westboro-baptist-church/

[beam me up scottie]

124. LMAO!!! Those are hilarious!

Genius!

God hates kittens:




They even enlisted Bender:




All Glory to the Hypno Toad!





Thank you so much for posting that link!

[guillaumeb]

106. You did not actually respond to my question.

Is there a reason? Do you have no thoughts as to Geller's intent?

[beam me up scottie]

118. What? That she meant to provoke? OF COURSE SHE MEANT TO PROVOKE.

Two violent morons got so pissed about it they shot at her group, but that's on them - not the person who pissed them off.

You don't get to kill people who hurt your fee fees and then claim that you were provoked and/or have that person arrested for incitement.

Period.


Incitement would be encouraging her followers to harm muslims, she didn't do that. She may be a hateful bigot but she's not stupid.



And once more for mom: Nothing she has said or done is any worse than other hate speech spewed every day in this country. The fact that she targeted just one group of people doesn't make it so.


I notice you haven't addressed my question re the above point, how is what she did worse than the hate speech used by Westboro Baptist, the pope and every other right wing christian homophobe to promote bigotry against lgbt people?


What about God, he said some pretty fucking hateful things and actually instructed his followers to kill, can he be indicted?

[GGJohn]

26. Of course she provokes, which isn't illegal,

but she did exactly what the KKK did in Skokie, IL when they marched through the neighborhood.
What Pam Geller did was against any moral code, but that's not illegal.

BTW:

[Warren Stupidity]

100. "intent to provoke" is not what is meant by the incitement limitation of free speech.

Incitement is an explicit intention utterance requesting people to commit lawless acts. "Lets go kill the muslims" for example, in a speech to a bunch of armed people in a town with a muslim population. That would be incitement.

[X_Digger]

39. Legally, that argument is full of shit.

Incitement has a specific definition (coupled with another keyword 'imminent') -- and that ain't it.

Legal knowledge from Wikipedia isn't often complete.

[Igel]

102. And if she incites somebody to go out and kill a Muslim, she can be held accountable.

Inciting people to make cartoons is a bit different.

And the cartoons that she had people made didn't incite those who assaulted that locale and activity. Any more than a gay man who is dressed in a rather flamboyant style could be accused of "inciting" an attack on him, or a woman with a neckline down to her navel could be accused of "inciting" her own rape.

You're shifting the definition of "incitement" in rather manipulative and goal-directed ways.

"Incitement" is, "Hey, Johnny, go get a gun and kill Mike, you know Mike? He slept with your wife and daughter last week and you know what kinds of diseases those Republicans can carry. I just saw him at the icehouse two blocks from here. I'll drive."

[ileus]

10. Nice speech wouldn't need to be guaranteed.

The First is there to stop folks from declaring other people opinions aren't allowed.

[beam me up scottie]

12. Exactly.

Just ask the ACLU:

Free Speech

Over the years, the ACLU has frequently represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.

[hifiguy]

112. Yep.

The hardest part of taking the First Amendment seriously and standing by it is that one often has to defend the speech of assholes. But in the long run it's worth doing.

[ibegurpard]

13. so what?

there's also no prohibition on calling out racist inciters for their hateful bullshit.

[cherokeeprogressive]

18. Yeah, that's the thing people tend to miss, or misunderstand.

The First Amendment ONLY applies when it's the GOVERNMENT trying to curtail what you're saying. The govt. is the only entity capable of legally "censoring" speech.

[Not water]

35. The author doesn't claim that calling out racists is unconstitutional

Either.

Calling out X's hateful speech is different from saying that X's speech is unconstitutional.

[Bluenorthwest]

44. That's exactly what you are supposed to do, and what other populations targeted by hateful

bigots have done many times in the past. Some of us have been dealing with shit like this for years and years. It is absurd to see straight religious people claim to be some unique victims of the very abuse they have served up to others so constantly.

[beam me up scottie]

45. Sing it Blue!

Westboro Baptist says you deserve AIDS - it's freedom of speech.

Geller holds cartoon contest for beloved prophet - it's incitement.



Religious privilege is alive and well and man is it ugly.

[Bluenorthwest]

54. None of them can answer for it. They can't even manage to explain why, if they are opposed to

insulting and provocative speech against minorities as a basic principle, they also cheer for the Pope who calls LGBT people every shitty thing in the book and says God is at war against our rights which are Satan's idea. They are walking contradictions with bullshit dripping out of their hypocritical maws.

[beam me up scottie]

58. Well when the pope uses hate speech it's okay because...god and stuff.

When people fight back and criticize religion it's because we're bigots.

[Bluenorthwest]

60. It's a very revealing subject.

It is interesting how people try to rationalize Phelps so that religion can be the special first and only victim of hate speech instead of the original sinner that it is.

[beam me up scottie]

62. When muslims try to shoot people it's because they were REALLY FUCKING PROVOKED!!!

Last edited Sat May 9, 2015, 12:34 AM - Edit history (2)

At least according to some, Geller's hate speech was more provocative than that used by Phelps' followers.

She was really really really hateful towards just one group, that's the difference I'm told.


We know that Phelps' intent was not to incite bigots to assault lgbt people because...?

And that the KKK didn't mean to incite racists to assault blacks?

[GGJohn]

15. Excellent thread.

Welcome to DU.

[seveneyes]

41. Maybe she should speak less critical of those that behead and murder innocents

But then, how would that come across?

[guillaumeb]

53. Hate speech is protected speech.

And there is a reason that it is called hate speech. It expresses hateful and/or hurtful ideas. Hate speech directed at any member of any group is terrible.

But there IS a difference between hate speech and incitement. I have given a link twice to Brandenberg v. Ohio. Look it up to see what incitement is. When the original poster talks about fighting words THAT is one way of saying incitement.

Does anyone here defend what Geller does? Does anyone here feel what she does is not incitement? Why all the eagerness to defend someone who seems to like the violent reactions she provokes?

[Bluenorthwest]

56. You left many pointed, direct questions unanswered upthread so posting down here looks craven.

Your claim that Westboro Baptist and other groups similar to Geller but actually far worse are 'not incitement' needs to be addressed.

[guillaumeb]

64. I will cravenly direct you to Brandenberg v. Ohio.

[X_Digger]

70. Free clue: IMMINENT. You don gots it. n/t

[guillaumeb]

105. One of us "don gots it" to use your phrasing.

From Brandenberg v. Ohio


Facts of the Case:

Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform," as well as assembling "with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."

Conclusion

Decision: 8 votes for Brandenburg, 0 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

The Court's Per Curiam opinion held that the Ohio law violated Brandenburg's right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.

My view: Yes, one of us does not understand incitement in the context of the law. In the Garland Texas incident, Pamela Geller claimed to be sponsoring a cartoon contest to see who could produce the most insulting image of the Prophet. The contest incited two people to use violence. To say that Geller had no idea that this might happen strains credibility. Geller, like Sarah Palin, like Stephane Charbonnier, like the Danish editor, are deliberately provoking when they are aware that violence may result. In this case, the violence WAS imminent because it happened at the event.

[X_Digger]

107. "imminent lawless action" -- notice that word, again?

Here, let me help-

imminent
[im-uh-nuh nt]

adjective
1.
likely to occur at any moment; impending:



Fucking duh.

By your logic, running a reproductive services clinic is an offensive act, and any violence there is a result of "incitement". Because violence happened, it was imminent. (How's that post-hoc logic go again?)

[guillaumeb]

108. Can I assume that you did NOT actually read my link?

Because if you did, please define for me the "Brandenberg Test". I feel your responses are evasive, at best.

Another question: What, in your view, was Geller's intent in sponsoring the supposed contest?

As to your last example, reproductive services are legal services. The intent is to provide the services. Do you truly feel that Geller's intent was to encourage the arts? Please. Try again.

[X_Digger]

109. I've read Brandenberg multiple times, thanks.

Had Gellar said, "Grab a pitchfork, lets go kill us some Mooslims!"-- that would be incitement.

Saying, "Grab a crayon, lets draw pictures of Mohammed!" -- is not incitement.

Fucking duh. Wikipedia lawyers make me laugh.

[guillaumeb]

110. Still no response to my questions?

I grade you very high for evasion, not so high for actual conversation. Again, nice try.

[X_Digger]

111. Lol, keep trying. You're not getting anywhere, but you look funny trying.

Why don't you craft a letter to the justice department sharing your novel theory of the law, telling them how they can start prosecuting folks for incitement.

Hell, our new AG will probably share the letter with her friends for a chuckle.

[hifiguy]

113. That is a correct reading and interpretation

of the applicable law.

[beam me up scottie]

115. Finally, someone explains it in a way that poster will understand.

Or not, it seems.

[beam me up scottie]

59. You have yet to point out where she did anything illegal.

Waving your arms around repeating over and over that she was PROVOKING people isn't proof of incitement.

Why all the eagerness to defend someone who seems to like the violent reactions she provokes?

No one is defending Geller, we're defending the 1st Amendment against people who think religion deserves special treatment.

[guillaumeb]

66. she skirts the illegal

just like Sarah Palin skirted the illegal with her "targeted Congressional District" page. Geller and Palin are counting on their being a certain number of people who, given the appropriate message, WILL react with violence.

I never said that religion or anything deserves special treatment. I simply feel that too many here are determined to ignore Geller's history of provocation and extreme rhetoric. That her rhetoric is directed solely at Islam and Muslims is also ignored by many here.

[beam me up scottie]

69. So she hasn't done anything to actually incite her followers to violence.

I simply feel that too many here are determined to ignore Geller's history of provocation and extreme rhetoric. That her rhetoric is directed solely at Islam and Muslims is also ignored by many here.

That's a strawman, no one here is ignoring her extremism, it's just no different to us than any other kind.

It's people like you who keep ignoring the similarities between her rhetoric and that used by other hate groups.

The only difference is that her detractors tried to kill people when they were provoked.

That's it.

[guillaumeb]

103. Geller incited with her non-protected speech. As a result, people died.

she got more publicity. I would think that Geller sees this as a win.

[beam me up scottie]

114. Repeating something over and over doesn't make it true.

You already admitted in your previous post that she didn't break the law: "she skirts the illegal" = legal

And now you're saying her speech isn't "protected".

Either provide proof that she broke the law or let it go.

[Jim Lane]

119. Your version of incitement accepts the "heckler's veto"

Consider two cases:
1. Geller, standing outside a mosque, begins to urge a large armed mob of her followers to go inside and kill Muslims.
2. Geller runs a stupid contest that offends many Muslims, some of whom are unhinged and also own guns.

In both cases, the authorities try to prevent Geller's speech. She pleads the First Amendment. The authorities respond that she's inciting violence because, if they let her speech go forward, shots may be fired.

What result?

Your view seems to be that incitement is incitement and neither act of speech is protected. The crucial difference, though, is that in case 1 the speaker is urging violence. In case 2 the violence is threatened by people who disagree with the speaker. Even if we grant that, in this particular case 2, Geller foresaw that people would be offended, foresaw that some might react foolishly, and actually hoped for that outcome, it doesn't matter. It's still the "heckler's veto", meaning that you would empower people who disagree with speech to shut it down just by threatening violence.

The phrase "heckler's veto" was coined by Professor Harry Kalven, a noted scholar of the First Amendment. Those of us who support the principles of the First Amendment believe that the heckler's veto is never a justification for curtailing speech. If necessary to preserve order, the National Guard should be called out to protect the speaker, even if he or she is purveying hate speech.

[beam me up scottie]

120. Thank you, Jim Lane.

Very insightful.

[Yo_Mama]

117. It doesn't matter who her rhetoric is directed at - it matters whether it is illegal or not

And it is legal, and I would argue that it ought to be legal.

The problem here is that there are some Muslims who react to rhetoric with violence, which is not compatible with life in a free society. They are the problem, not Geller.

And it is those who want to ban the speech that might provoke such persons to violence who are creating the Gellers.

You've got cause and effect entirely reversed.

What about those who have argued with the Catholic church's dogmas on divorce, male priesthood, abortion, homosexuality, etc, etc? Do you want to encourage offended Catholics to take up arms? Do you think Catholics have the right to shoot people who steal the Eucharist? Should that be banned because it is so acutely offensive?
http://www.catholicleague.org/eucharist-desecrated-no-penalty-for-professor/

No, no one ever thinks about such a step, or argues for it, because Catholics aren't going to whack those who do such a thing. Those who are arguing that it should be illegal to make cartoons of Muhammed are doing so not to protect religious sensibilities, but to appease those who will react with violence.

If we ever allow any individual's willingness to resort to violence to govern what may or may not be said in public, we have effectively lost freedom of speech, and I guarantee you that we will be breeding extremists like flies.

Note that very, very few Muslims would react as those two did - and at least one was already well known to the FBI for being an extremist.

There is no right, and there can be no right in our society, of any religious icon or symbol or idea to be protected from critical speech. All of history shows that once we establish such a right, we create endless war.

[beam me up scottie]

126. ^^^THIS^^^

[calimary]

63. Welcome to DU, Not water!

Glad you're here! This is one of the things I like about DU - always more to learn! Always new things to think about.

[Cryptoad]

65. may i suggest the 9th amend for your reading pleasure,

it insures that none of our rights are absolute!

[Gman]

67. I'm not so sure about that anymore.

Free speech does not allow you to "shout fire in a crowded theater" because of the obvious implications of the panic that could happen and people getting hurt. (Schenk v United States)

In Schenk (from Wikipedia) "...(Oliver Wendell) Holmes said that expressions which in the circumstances were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished."

Did Geller not create the circumstance that were intended to result in a crime and cause a clear and present danger? Is that her right?

[Warren DeMontague]

73. so basically any time anyone says something that they know will piss someone else off

They are "shouting fire"?

That is the most abused, overused metaphor in the history of constitutional law. No one in recent history has even been convicted of ACTUALLY shouting fire in a crowded theater (when is the last time someone was?) and yet that tired-ass analogy gets dragged out EVERY time someone sees speech they don't like.

Larry Flynt published a magazine with an interracial couple having sex? SHOUTING FIRE IN A CROWDED THEATER!!! (well, someone did shoot him over it, it seems)

Maybe if people were actually using "shouting fire in a crowded theater" for stuff like, oh, shouting fire in a crowded theater, instead of "saying something that makes me - or group xxx - real mad" the analogy might still hold some shred of relevance.

As it is, it doesn't.

[Gman]

80. First off, that is not a metaphor

It is language used by the SCOTUS and as such is part of the law. That's what you need to understand. That phrase is the standard developed by the SCOTUS.

You also severely mix apples and orangutans by bringing up Larry Flint. A picture of an interracial couple as NOT INTENDED to cause harm. Huge difference.

Learn about the SCOTUS.

[Warren DeMontague]

87. So when is the last time it was used?

When is the last time someone was prosecuted under that constitutional doctrine?

People say things that offend -deeply offend- other people all the time- so how come they're not being arrested left and right?

How come the Nazis were able to march in Skokie?

As for "intent to cause harm", you realize- again- that you're basically suggesting that Blasphemy should be illegal.

[Warren Stupidity]

101. I don't think that means what you think it means.

Schenck v. United States, 249 U.S. 47 (1919), is a United States Supreme Court decision concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in a famous opinion by Justice Oliver Wendell Holmes, Jr., concluded that defendants who distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense.

The "fire in the theater" phrase for this is unfortunate. Schenck allows the government to arrest you for advocating actions that could be considered criminal. Like Brandenburg you have to be explicitly and intentionally speaking for lawlessness. "Creating the circumstances that were intended to result in a crime" doesn't qualify.

[Warren DeMontague]

68. Cue the "Butbutbut" brigade.

People no doubt falling all over this thread to explain why it ought to be against the law to say stuff that makes some people mad.

[beam me up scottie]

71. Nope, they're falling all over this thread to explain why hate speech against religious groups

is so much worse than hate speech against others.

Geller only targeted muslims, that makes her worse than Westboro Baptist or the KKK.

Or something.

[Warren DeMontague]

76. And can you imagine how much better these arguments would go for people offended by her

Speech, if they responded to her the way people do to Phelps- namely, with humor, grace, and pointed ridicule?

Phelps looks like an ass, because people laugh at him, instead of issuing fatwas against him.

[beam me up scottie]

77. The best way to prove she's wrong is to not shoot at her group.

All but two figured that out.

[certainot]

72. it's not about hate speech, it's about the idiotic left/dem

ignorance of the fact that 1000 coordinated hate speech stations dominate american politics.

[Hekate]

74. Every right has limits. You can't yell "Fire!" in a crowded theater, nor "Hi, Jack! " in an airport.

Slander and libel are likewise not protected by the First Amendment.

What that stupid, stupid woman Geller did may or may not have been "protected," but the results were catastrophic. I think she may have actually been hoping for that particular outcome, given the setup. And two fools walked into her trap and are now dead.

[Spitfire of ATJ]

75. There are some states that have laws on the books about "fighting words"....

You can actually get out of punching someone in the face before a judge by saying you were provoked because, "Them is fightin' words".

[bluestateguy]

78. If you have to win the argument by using government to silence the other side

Then maybe your own argument isn't all that strong in the first place.

[merrily]

81. Volokh :puke: Hate speech and "fighting words" ARE the same. Matthew Shephard.

No, not every negative comment about members of the GLBTQ community can be regulated consistently with the First Amendment. However, obviously, some cross lines, even fatal lines. Courts draw those kinds of distinctions all the time.

PS. I am expressing no opinion about the cartoons.

[Bluenorthwest]

122. Matthew Shepard was murdred, not insulted. Murder is against the law. What happened to him was

not a 'negative comment' it was a crime as it always is to kill a human being. It is really not acceptable to equate the murder of an innocent person with mere words.

[merrily]

128. I know he was murdered and I was not equating killing someone with insulting someone.

I don't know why you would assume that I would equate the two. ..

The issue is whether hate speech is like "fighting words." Fighting words are words that incite violence. Hate speech incites violence.

I believe hate speech against members of the GLBT community leads to abusing members of of that community, up to and including murder. Matthew Shepherd is but one example of that.

[6000eliot]

85. So, by all means, hate away.

[Warren DeMontague]

88. Kick

[beam me up scottie]

95. From the ACLU:

Free Speech

Over the years, the ACLU has frequently represented or defended individuals engaged in some truly offensive speech. We have defended the speech rights of communists, Nazis, Ku Klux Klan members, accused terrorists, pornographers, anti-LGBT activists, and flag burners. That’s because the defense of freedom of speech is most necessary when the message is one most people find repulsive. Constitutional rights must apply to even the most unpopular groups if they’re going to be preserved for everyone.

[reddread]

96. +1

who would have ever thought that modern grass root Democratic voters would want to threaten fundamental freedom?

[Warren DeMontague]

125. Thank You

[Lee-Lee]

98. And for all you people using the "Fire in a crowded theather" analogy

Here is the difference. A reasonable response by a reasonable person to someone yelling fire in a movie theather is to get the hell out.

A false fire alarm is intended to get that response- the reasonable response expected by people hearing it.

There is nothing reasonable about killing people over cartoons. Nothing. Zilch. Nada.

We can't use the unreasonable, irrational response of zealots as justification to start banning speech. Because if we do that just sends the message violence works. Next thing you know a few idiots set bombs at LGBT pride events and make more threats and LGBT events and speech supporting thier issues becomes banned.... And if you think that's a leap, then your letting your emotions cloud your vision because the logic would be exactly the same- if someone threatens violence then the speech isn't protected.

[reddread]

127. How about "a dirty bomb to wipe out half the liberals in Fresno"?

the sort of humor being passed around a city council meeting 12 years ago.
Only two people objected enough to demand a resignation, which of course was not in the cards.
Other threats at the same time included "I should call the cops and have them cap somebody"

these statements circulated via official email accounts during a meeting in which Peace Fresno
was bringing a resolution against the Iraq Invasion to the City Council.

My personal concern was only for the safety of decent people who faced an elevated risk from
unknown lunatics who might feel encouraged to violence.
This trumped the absolute freedom (in my mind) of some jokers to say things so irresponsible.