Thursday, April 11, 2013
The Supreme Court in recent years has issued a series of opinions striking restrictions on some of the most offensive kinds of speech. From restrictions on violent video games, to funeral protests, to crush videos, and even to lies about receiving the Medal of Honor, the Court has put free speech ahead of offense. The Court privileged free speech over countveiling factors in other areas, too, perhaps most notably in Citizens United.
But in Holder v. Humanitarian Law Project, the Court went the other way. In HLP, the Court upheld the "material support" provision of the PATRIOT Act, which outlawed speech that provided material support to terrorists. The ruling didn't obviously square with the Court's clear trend to privilege speech over offense or other consderations, and it came under sharp fire in the media and the academic world. In particular, nobody seemed to defend HLP in relation to some of the Court's canonical cases and doctrine on categories of unprotected speech. (And that's becuase some the most relevant categories--in particular, group defamation and hate speech--have themselves been targets for some academics.)
Alexander Tsesis (Loyola Chicago) is out to change that in his most recent contribution to free speech scholarship, Infammatory Speech: Offense Versus Incitement, recently posted on SSRN and to appear in the University of Minnesota Law Review.
Tsesis distinguishes between the Cour's treatment of offensive speech (in the string of cases mentioned above) and its treatment of threatening speech--overturning restrictions on the former, and upholding restrictions on the latter. He defends HLP as a case involving threatening speech, or as protecting public safety. In particular, he puts HLP right at the intersection of Virginia v. Black (holding that a state may ban cross burning with the intent to intimidate, as a type of true threat) and Beauharnais v. Illinois (upholding a state statute penalizing group defamation), even if HLP applied a heightened form of scrutiny:
Viewed in concert, the holdings in Black, Beauharnais, and HLP indicate that the Court is deferential to the regulation of speech for a limited number of public safety purposes. The public safety policies involved in these three cases were inapplicable to the offensive speech cases . . . . HLP did differ from the other two incitement cases in its reference to a "more rigorous scrutiny" while never adopting any comparable standard for proving up group defamations or true threats. This distinction is logical because material support might involve discourse that is not harmful on its face, albeit increasing organizations' standing and credibility, while true threats and group defamations are by definition menacing to the public at large or some targeted segment thereof. Thus, the greater potential for error and abuse in the enforcement of material support statutes required a heightened level of scrutiny that would be unfitting for the other two categories.
Along the way, Tsesis explores some of the problems applying a category like incitement to digital communications and the internet, where there's not always imminence but there still may be a threat to public safety. Group defamation and true threats are better fits for this kind of communication, he says. And thus they're better fits for understanding and justifying HLP, too. He also convincingly takes on those who criticize HLP, Black, and Beauharnais.
Tsesis's upshot: "When statements, emblems, badges, symbols, or other forms of expression that are historically tied to persecution and harmful stereotypes are intentionally used to put others in fear of violence, they are unprotected by the First Amendment."
This is a terrific piece, well argued, thoughtful and provocative. It also fills a hole in the literature. Highly recommended; read it.