I concluded my last essay with these questions:
Is at least some hate speech subject to a lower level of First Amendment protection?
Is the very nature of social media with its potential to spread bile worldwide such that America must rethink the scope of First Amendment protection regarding social media? Is it time to pass laws applying The Communications Act applicable to over-the-air broadcast outlets to the Facebooks, Googles, X’s and Tick-Tocks of the world?
Should the rare and unprecedented appearance of an obviously authoritarian, nasty and character-compromised figure, closer to a mob boss than a true leader in the spirit of America’s Constitutional mandate, be viewed through a different lens; a lens akin to a cult leader who, in an instance, can incite people to violent threats against government officials? Perhaps more specifically is the following: Does a President of the United States, or former president, whose very words can affect the security of the nation his purportedly serves, have the same free speech rights as others?
Here, I would expand the discussion to include hate conduct. What has our Supreme Court said on the subject? In the 2017 case Matal v. Tam, the Court UNANIMOUSLY stated that there is no "hate speech" exception to the free speech rights protected by the First Amendment. Government may not discriminate against speech on the basis of the speaker's viewpoint. Is that rule truly absolute? Back in 1952, the Court in Beauharnais v. Illinois stated that there is a narrow exception covering those words which by their very utterances tend to inflict injury or tend to incite an immediate breach of the peace. Later in 1969, in the landmark case of Brandenburg v. Ohio, the Court held that a state cannot forbid advocacy of the use of force, or of a violation of law UNLESS such advocacy is directed to inciting imminent lawless action and is likely to incite or produce such action.
What has developed is the doctrine that speech “content” cannot be made illegal; speech “mode” can be regulated or even barred. The question becomes when does content and mode intersect to such a degree that there is a substantial risk of imminent violence or harm by virtue of the hate disseminated by the speaker and publisher.
In my view, it is time for reconsideration of the current state of the law when it comes to “hate” speech. The reason is social media. I believe that imminent harm is so much more likely in an era of instantaneous communication. The history of this nation is a history about a “marketplace of ideas.” Our Courts are simply behind the times when they rely on the exchange of ideas for a progressive democratic society. The problem is that we do not have “exchange” like we used to. Today, misinformation and disinformation can take hold before there is ever an opportunity for people to consider the full range of ideas. I believe social media has changed the dynamic when it comes to what can lead to imminent harm.
I also believe something else about the “speaker.” Who disseminates hate matters. What if it is the President of the United States? The words of a president can have instant and adverse effects on society. The answer? I do not believe that the PERSON who occupies THE OFFICE of the Presidency has the same First Amendment rights as an ordinary citizen. I believe that with the taking of the Constitutional oath of office, the person who enters the office gives up substantial personal rights in favor of the responsibilities that come with having sole power over the nuclear codes.
So there you have it. A series about the First Amendment. I suppose that the viewpoints I have expressed about a need to rethink the First Amendment in a time of social media, instant communication and a “marketplace of ideas” that is not your Father’s marketplace will not find unanimous support. I understand. But something has happened to the American way of life by virtue of social media. We had best be alert to this, among so many other, threats to Democracy.