Free Speech for the Right? A Primer on Key Legal Questions and Principles
Date Written: 2017-09-15
Year Published: 2017
Resource Type: Article
Cx Number: CX21262
The rise in national attention to the "alt-right" and fascist-white supremacist protesters has raised questions about the parameters of free speech in America. When can free speech be limited, if ever? What are the implications of attempting to limit controversial speech? And what precedents has the Supreme Court set regarding free speech?
There are numerous precedents related to the topic of controversial speech. One major case is Brandenburg v. Ohio (1969), in which a KKK member, Clarence Brandenburg, spoke at a rally about the possible need for "revengeance" against people of color as related to government initiatives taken in support of minority groups. Brandenburg was convicted under state law and sentenced to 10 years in prison for advocating violence, in violation of a state statute prohibiting support for "crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." But in overruling the state conviction, the Supreme Court ruled that government could only restrict incendiary speech if there was an “imminent” violent action is incited by that speech.
The Brandenburg case is important because it demonstrates that there is no court support for shutting down far-right rallies based on the possibility of violence between protesters and their opponents. If an individual can be shown to have participated in an attack on, or murder of another, or to have actively encouraged that act or participated in it, this "speech" is not protected under the First Amendment, as the individual is considered an accessory to assault or murder. The Supreme Court's reading of permissible and impermissible speech in this case was very narrow. It does not provide carte blanche authority to shutdown rallies due to the possibility of violence.