James Loeffler: An abandoned weapon in the fight against hate speech

Holmes himself repented of the decision—though he continued to indulge his taste for pithy phrases with lines like “Three generations of imbeciles are enough” to justify forcible government sterilization of the handicapped.

So when you smugly drop “You can’t shout ‘Fire!’ in a crowded theater” in a First Amendment debate, you’re misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters. This is not persuasive or helpful.

“Incitement and threats are not free speech.”

While technically true, not everything that might colloquially be called a “threat” is outside the protection of the First Amendment. Only “true threats” are unprotected—threats conveying “a serious expression of intent to an act of unlawful violence to a particular individual or group of individuals.” There’s some ambiguity about whether evaluating the seriousness of a threat is an objective question, or a subjective question, or both, something the Supreme Court recently failed to resolve. But most courts impose an objective test: A threat is “true” if a reasonable person hearing it would take it as a sincere expression of intent to do harm. That doesn’t cover most hyperbole and political invective.

We’re free, moreover, to attack the law, argue that breaking it is moral, and urge our fellow citizens to break it. We can even assert that violence is justified. Such advocacy is only unprotected when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Imminent is the key word here. Saying “Go beat up those protesters over there” probably qualifies; ugly rhetoric in general does not.

“Fighting words are not free speech.”

People in favor of restrictions on ugly speech often point to the “fighting words” doctrine—the idea, taken from the 1942 case Chaplinsky v. New Hampshire, that the government can punish words “which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” This argument ignores the past 80 years of First Amendment cases, which have dramatically narrowed the doctrine to the point that many commentators question whether it still survives. At most, the doctrine allows the government to punish face-to-face insults likely to provoke an immediate violent reaction from the particular person addressed.

Read: Trump’s redundant executive order on campus speech

Furthermore, like invoking “’Fire!’ in a crowded theater,” dropping “fighting words” reveals a tin ear for history. As a Jehovah’s Witness, Walter Chaplinsky (of Chaplinsky v. New Hampshire) was a member of a religious minority subject to shocking abuse and injustice in the 1930s and ’40s. He was preaching on a street corner when a mob assaulted him; one man tried to impale him on a pole bearing the American flag. Police officers led him away rather than arresting his attackers, provoking him to call them fascists. For that offense he was prosecuted. So when you cite the fighting-words doctrine to urge punishment of bigotry, you’re relying on a doctrine built on the subjugation of religious minorities. Mind the irony.

“Hate speech is not free speech.”

There is an admirable growing social consensus that it’s despicable to denigrate people based on ethnicity, religion, or sexuality. But most despicable speech is protected by the First Amendment. Contrary to the popular slogan, there is no hate-speech exception to the First Amendment. Particular examples of hateful speech may satisfy the established tests for the true-threats or incitement exceptions, but they’re not unprotected just because they’re hateful.

“Stochastic terrorism is not free speech.”

In the past few months you may have heard the term stochastic terrorism to describe speech that, according to some advocates, whips up hatred against groups and leads unbalanced people to commit violence against them, even if it doesn’t explicitly call for violence. By definition, if stochastic terrorism doesn’t call for violence, it doesn’t fall outside the First Amendment, because it’s not intended and likely to lead to imminent lawless action. It may be morally reprehensible, but, just like hate speech, it’s protected.

“We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

It’s common, in free-speech debates, to find people arguing that America must balance free speech and safety, or free speech and the right to be free of abuse. A related rhetorical trope is “line drawing”: the idea that we must draw lines between free speech and abusive speech.