Posted on 9/11/17

Perhaps the most discussed aspect of the United States Constitution is theFirst Amendment, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press; or the right of the people peacefully to assemble, and to petition the Government for a redress of Grievances.”

The recent events in Charlottesville, Virginia ignited further discussion about the First Amendment. So-called White Nationalists organized a march to protest the removal of a statue of Confederate General Robert E. Lee. The city passed a resolution to remove the statue, claiming the it glorifies a man who promoted slavery through an armed conflict with the North with the goal of keeping the status quo.

On August 11th and 12th, the White Nationalists converged on Charlottesville and held a rally. In response, counter protestors confronted the White Nationalists. Words were spoken and the situation escalated. At one point, a White Nationalist drove his car into a crowd of protestors, killing 1 and injuring 20.

The First Amendment

A person’s right to assemble and free speech, even if it is with respect to racism and bigotry, is guaranteed by the First Amendment. In the case Chaplinsky v. New Hampshire from 1942, the United States Supreme Court created an exception that stated that “fighting words” are not under the aegis of the First Amendment. In subsequent rulings, the Supreme Court defined fighting words as specifically targeted to provoke immediate violence. Therefore, those who use hateful and belittling speech do not necessarily rise to the level of hate speech.

In the Charlottesville, however, a white nationalist rammed his car into a crowd of people, resulting in fighting words because someone committed violence after a showing of hate speech. Is this no longer protected by the First Amendment? This is not necessarily the case. The words themselves may not have triggered the violence and there is no indication that the white nationalists’ words or actions promoted violence; they may have simply sought to express their displeasure with removing the Robert E. Lee statue. Rather, the circumstances, which included widespread media coverage and opposition groups like the antifa and Anti Racist Action, contributed to the heightened tension.

In the 2011 Supreme Court case ofSynder v. Phelps, the Supreme Court ruled that targeted emotional injury is not excluded from First Amendment protection. In that case, the family of a fallen soldier sued the Topeka, Kansas-based Westboro Baptist Church for emotional harm when the church picketed the soldier’s funeral and held up hateful signs, including a “God hates fags” sign. The petitioners claimed that the church used fighting words and should be responsible for emotional distress. The Supreme Court held that such speech is protected speech so no emotional distress claim can go through. The Supreme Court reasoned that fighting words only apply to physical harm, not emotional harm.

If you have been accused of using hate speech, know that you have Constitutionally-protected rights. Contact the law firm of Christopher Abel, a Texas criminal defense attorney.

(image courtesy of Daniel Tafjord)


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