A North Carolina gun store, Cherokee Guns, erected a billboard that featured Congresswomen Ilhan Omar, Alexandria Ocasio-Cortez, Rashida Tlaib, and Ayanna Pressley. They’re pretty proud of it, as it’s all over their Facebook page:

The billboard sparked outrage. Some even called it an incitement to violence that is unprotected speech under the First Amendment.

I like that argument, but it’s wrong. The law, as it stands now, clearly protects this kind of advertising. But, to me, the more interesting question is “should it?” To ask this question, I went to First Amendment expert Ken White. White is a partner at Brown, White & Osborne, he runs the popular Popehat blog and associated Twitter feed, and is the guy to talk to when you want to be talked out of taking the First Amendment and setting it on fire.

Our conversation about the billboard and attendant First Amendment issues is below, edited for space and to make ourselves sound like we were in the same room:

Elie: Mr. Popehat, you know the North Carolina gun store billboard is wrong. You also know that it is legal and Constitutional. I know it is wrong and Constitutional. But can you explain why it is Constitutional? And can you do it in a way that doesn’t sound too much like Anthony Kennedy and piss me off?

White: Let’s start with the proposition that speech is protected unless it falls into an established exception to the First Amendment. Those are few and well-established and relatively narrow, and the Supreme Court has recently made it very clear that we’re not going to keep making them up and that we’re not going to create ad-hoc exceptions by balancing value of speech against harm on a case-by-case basis. Either the speech is in an established exception or not.

This billboard is hateful. But contrary to popular belief, there is no “hate speech” exception to the First Amendment. People say “hate speech is not free speech,” but, sorry, that’s just wrong. But there are a couple of related exceptions we should analyze: incitement and true threats. I mention both because they are often conflated.

Elie: As a person who gets “untrue” threats, and yet is sometimes accused of “incitement,” I want people to understand that this distinction is important.

White: First, incitement. Incitement is the exception that applies when you claim someone is encouraging people to break the law. Under very well-established and long-standing precedent — about 50 years’ worth — the standard is this: is the speech intended, and likely, to cause imminent lawless action?

Here, it almost certainly doesn’t meet the test. The billboard is vile and encourages treating these people as dangerous others, but it’s not calling — explicitly or implicitly — for imminent lawless action. Imminent generally means something that someone could and likely would do right away.

A good example would be telling an angry mob “go get those protesters.” You could see the billboard possibly meeting the standard if it was unveiled at a rally, where the women were present, where an angry crowd was present. Maybe. But as a depiction demonizing politicians in general, even with a slimy sly reference to guns? No. It doesn’t meet the standard. It’s not, in my view, a close call.

There are factors that could change it. Consider if a particular speaker had a record of putting up billboards of not just these politicians, but their home addresses, and that there was a record of people responding with violence. That’s more or less the scenario we see in the abortion-provider-wanted-posters case — which is controversial and dubious. But you don’t have that level of specificity or that record here.

Elie: While I tend to agree that this is not a close call, I think incitement here is the closer issue than true threat. Right?

White: Okay, let’s talk about threats. Only “true threats” are outside the protection of the First Amendment. Overheated rhetoric, figures of speech, and generally internet assholery is not outside the First Amendment protections unless it meets that standard. So. What is a “true threat?”

A “true threat” is a threat that (1) a reasonable person would take as a sincere expression of intent to do harm, and (2) the speaker intended that it would be taken that way — or maybe was reckless about whether it would be taken that way. So it has both an objective (reasonable person) and subjective (intent) element. The Supreme Court recently had an opportunity to clarify whether the subjective element requires the speaker to INTEND that the threat be taken seriously, or merely be RECKLESS about whether or not it would be taken seriously, but punted, so that’s still up in the air.

So: not all threats are true threats. Statements that everyone understands to be hyperbole and bluster are not true threats and are protected. “Ken, if you channel Kennedy I’m going to kick your ass” is not a true threat.

Elie: Applying the “reasonable person” standard to the freaking nut jobs who need an arsenal of guns and hate women of color and are voting for President Trump annoys me, but go on.

White: There use to be a commenter at the Volokh Conspiracy, and then at my blog, who called himself Supremacy Claus, who fervently believed that the “reasonable person” standard violated the Establishment Clause because it was a religious belief. The older I get the more sympathetic I get to his position.

Anyway: as you point out, an objective “reasonable person” test runs into all sorts of problems when you have cultural clashes. This is especially true on the internet, with various subcultures of nasty little trolls who use threatening language as a matter of routine. But it’s clear enough, from the relevant precedent, that the billboard here from the gun selling dipshit is not a true threat, because a reasonable person would not take it as a sincere expression of intent to do harm.

Elie: My issue is that “true threat” tests kind of mean that the authorities can’t do anything until the shooting actually starts. A “reasonable person” doesn’t shoot anybody. How can we apply a standard of reasonableness to an unreasonable action? As Bones McCoy once said: “How can I get a damn permit to do a damn illegal thing?”

White: Okay, fair enough, but bear in mind the “reasonable person” is the listener, not the speaker. So the question is would a reasonable person, hearing this statement, think “holy shit, this person is going to kill someone.” So it doesn’t require analyzing the reasonableness of a threatener. Hence the cultural conflicts.

So. The bottom line is this: the billboard is legal, protected, political speech. I respectfully submit — okay, I don’t respectfully submit, it’s extremely fucking obvious– that this is not a close call. Now, I recognize some people think that makes me a hate speech fan and racist, just like some people think I want to Sharia Law their white babies because I think the dude who put the sign up is an un-American racist piece of shit. But that’s the law.

Elie: So how is this NOT all just a game to make sure that white people who threaten/incite/use hate speech against people of color have outs, while people of color who get pissed off at white people can have their speech clipped?

White: That’s a fair question, Elie. And here’s one reason why: Recently you see, from the Right, (and from some Libertarians), a tremendous amount of bullshit about “the spirit of free speech.”

“The spirit of free speech” can be summarized as saying that not only is racist speech protected from prosecution and civil suits, it ought also be protected from other people’s response speech. So, the theory goes, when someone puts up a billboard like this, not only should they not be prosecuted (right) or sued (right), but it would be wrong to boycott them, shun them, encourage public condemnation of them that might cost them their job, and so forth, because that “chills speech.”

Elie: Yes! The “spirit” of free speech always seems to mean that I do not have the “free speech” right to yell at racist white people for saying something racist.

White: Basically, the “spirit of free speech” people want a world where people can be consequence-free assholes: where there’s a set of rules of civility and high-minded discourse that apply only to the responses to racist billboards, not to the racist billboards themselves. This is a legally and philosophically incoherent view and encourages, I think, people to view free speech arguments with suspicion and contempt.

Elie: Exactamundo! See… this is how you don’t sound like Kennedy.

White: This is my view: I think hate speech is absolutely protected by the Constitution, and ought to be. But I recognize that means people — especially people who don’t look like me — have to endure some pretty awful speech. And so, because I have a scrap of dignity and self-respect, I try not to nail myself to the cross when I get demonized over it, because it’s irrational to have different standards for speech and response to speech.

Elie: JUSTICE MYSTAL, CONCURRING. The majority has well explained the law as it is, and explained well what the law is not. But I now write separately to argue not what the law is, but what it should be…

When applied to people of color, the incitement principle does not take into account the lived experience of colored people. It does not take into account how lynchings happen, how assassinations happen, and how run-of-the-mill “I’m just going to beat you half to death” hate crimes happen.

The mob is encouraged, riled up, and given a black or brown scapegoat for their problems. Eventually, some members of the mob are going to *act.* The people riling up the mob know that there is a chance one of their idiot flock will act. We have to be able to bring legal consequences to these people, *before* there are additional dead or beaten people of color in the streets. Prosecuting merely the act after the fact might make white people feel better, but it does nothing for the victims who are either dead, bloodied, or live in fear of being dead and bloodied.

To put that in the form of a question, what *good* do incitement standards, as we currently have them, do for the people most likely to be the victims of the kind of racial violence black people have known in this country for 400 years?

White: It’s a perfectly fair question. The legal system disfavors the powerless — particularly racial and religious minorities. Rules devised by the system tend to do the same. The way the system works tends to do the same.

But — here’s the key — exceptions to constitutional rights absolutely follow the pattern. Put another way, any exception to free speech will be disproportionately applied against the powerless, and especially people of color.

The history of free speech law bears this out. Very little of it is about trying to put limits on racists. Most of it is about trying to put limits on the powerless — about the system finding excuses to jail poor people, people of color, unpopular people.

So, consider the cases involving a broad reading of incitement, the ones that might support prosecuting someone for a billboard like this. Consider Schenck v. U.S., in which Justice Holmes gave us the fatuous “fire in a crowded theater” trope. Schenck’s about prosecuting a socialist for distributing handbills suggesting that poor people resist the WWI draft. THAT’S what got the Supreme Court to articulate a very broad and unprincipled incitement standard, the type you’d need to reach a billboard like this.

Elie: Right. It’s used to put people like me in jail for saying “we need to take a sledgehammer to the Wall” if one idiot sledgehammers the Wall and catches a border security guard in the face… “by accident.”

White: Exactly. Or consider “fighting words,” a doctrine almost never applied by courts but often raised by people wanting broader bans on speech like this.

Chaplinksy — the poor bastard whose case led to the “fighting words” doctrine — was a Jehova’s Witness, a sect that was revoltingly prosecuted in the 30s and 40s. It’s an ugly bit of history most people don’t know about. Chaplinksy was streetcorner preaching and a crowd assembled and was threatening him, and a dude tried to RUN HIM THROUGH WITH A FLAGPOLE WITH THE AMERICAN FLAG. But the cops were wanted HIM to stop preaching, so he swore at a COP, and they arrested HIM, and the Supreme Court says that HE’S the one uttering the fighting words.

That’s the way these cases go. True threats doctrine? Developed on the backs of Vietnam War protesters.

Elie: I had forgotten where we get fighting words from.

But, if I may respond as if you were Joe Biden… THAT WAS THEN, OLD MAN. The argument that we can’t stop racists from inciting violence against us because the racists will use those laws against us is, at best, unsatisfying.

White: Elie, it may be unsatisfying, but sorry, it’s true. Consider:

Right now, Ted Cruz wants to have ANTIFA investigated and prosecuted under RICO. Now, that’s stupid for a number of reasons. But it illustrates that doctrines allowing broad attacks on speech are NOT going to be used against dudebros who run racist gun stores.

Who is going to get hit with broad definitions of incitement? It’s not gun store dudes. It’s Black Lives Matter marchers.

Consider all the efforts to pass new laws criminalizing unlawful assembly a couple of years ago after some particularly well-publicized Black Lives Matter marches.

Consider New York, right now, wanting to make it a FELONY to splash a cop. Now, that’s not speech, but that’s how the system works.

This isn’t speculation. It’s history. There is no rational reason to think that broad free speech exceptions will be used for the benefit of the powerless.

You are wickedly well-educated on the law, Elie. So remind our readers: in the first hate speech/hate crimes case to reach the Supreme Court, who was the aggressor and who was the victim?

Elie: [Furiously Googling] It’s the Mississippi Burning case, yeah?

White: It’s Wisconsin v. Mitchell, where the defendant was black and the victim was white. It was a case where a bunch of kids got riled up after watching “Mississippi Burning” and attacked a white guy. It is, by no stretch of the imagination a coincidence that the first hate crimes case involves black-on-white crime.

Elie: I mean, the reality that any speech law made to protect black people will be used against black people is one of the things that makes me hate this “land of the free” crap. But it also pushes me to my actually least favorite position. … Let’s make hate speech unconstitutional. Or, to put that more legally, let’s make hate speech unprotected speech.

Yes, that has the same problem that “PoC ‘hate’ speech” will be more prohibited than white hate speech, but it ALSO means that at least some white hate speech can be controlled. It’s a murder-suicide pact, but it will stop some white people from encouraging violence.

White: OK. Yes. Let’s talk about amendments to the Constitution. That’s a constitutional way, encouraged by the framers, to change what our rights are.

Elie: Yes, let’s do this how Jefferson would have wanted — says the black guy. 🙂

White: And let’s not confuse it with other popular proposed amendments to the First Amendment, like the deathless “no flag burning” amendment, or the right to pray in schools amendment.

So: I like specifics about law over generalities. So, Elie, how would you propose to word an anti-hate-speech amendment?

Elie: See, that’s the problem right there. Wording it. I’d go with something like this:

“Speech intended to threaten, harm, or harass other Americans based on the race, gender, religion, country of origin, sexual orientation, gender at birth or [insert whatever ism I’m forgetting because I’m not woke enough] shall not be considered protected speech. Congress shall have the power to enforce this provision.”

And yes, I’ve just written a Constitutional Amendment that still somehow doesn’t take down the fucking billboard and I hate myself.

But I am getting at “harassment” which means I can basically shut down white supremacist Twitter. To say nothing of the fact that my Amendment has a chilling effect on Donald J. Trump.

White: Okay. Not to be the guy who asks what does that mean — but what does that mean?

Elie: Threaten = trying to nudge the true threat analysis away from “imminent” and towards “reasonable. Harm = trying acknowledge that there are speech harms that are more than mere physical danger. Harass = “get out of my mentions, you asshole.” Threaten is enhanced, harm is new, harass is the one that will ruin free speech.

White: Since I’m having trouble analyzing this, can I ask how it would apply to an example? [we got through a couple of examples until]

OK, the Amy Wax example. Wax says, falsely, that no black students graduated with honors, right? So, reverse it, A prof who says that white kids at her school are privileged, racist, and indifferent to injustice, and ought to be ashamed. Protected or not?

Elie: Well, this gets to an important issue: TRUTH is always protected. At some point we need to stop white supremacists from spreading their trash. Wax was surfacing a lie. Not an opinion. Not research. Just lies. I’m just floored by how we can continue living in a society where freaking lying is protected speech, when we know how dangerous lies are to the very structure of our polity.

White: Do you want American courts adjudicating whether whites are racist? Would you like, say, a Trump appointee in the District of Mississippi ruling on that one?

Elie: Ugh. NO. No I do not want a Trump judge in Mississippi ruling on whether I have a right to a Slurpee. Much less on whether I can say what I want.

For those playing along at home, this is where Ken always gets me. I’M FREAKING RIGHT… but Ken knows this guy named Donald Trump and his mere EXISTENCE means that we can’t have nice things.

White: Okay. Let’s say public statements by professors, activists, political figures can be the basis for prosecution if they are factually false. Who is prosecuted first in America: Steve King, or AOC?

Elie: FUUCK THIS NOISE. I gotta go soon. Can you close with any *moral* argument for the protection of hate speech, beyond “That Trump guy is a bastard”?

White: My moral argument is not about the value of the speech. It’s about our brokenness as people and the inevitability that speech restrictions get used to attack the powerless. The moral argument is the same one I use about blasphemy or flag burning or speech that offends people on “the other side.”

We are weak and censorious and we like to punish people for ideas that make us mad. This trend particularly burdens the powerless, because that’s the way the system works. Exceptions to free speech always have been, and always will be, applied disproportionately to people of color and the poor and unpopular political minorities. Morally, I want to fight that.

Elie: You’re not wrong. It’s just really goddamned frustrating.

White: Let me close by talking about a man named Sidney Street.

One day in 1966 Sidney Street left his apartment in New York, walked down to a street corner, and burned a flag.

He didn’t have to take anyone’s flag. He had two. He burned the old one — the one with 48 stars — the one that had been on his father-in-law’s casket, not the new one he bought.

Sidney Street wasn’t a radical. He wasn’t a hippie. He wasn’t any sort of agitator.

Sidney Street was a bus driver. Sidney Street was a decorated WWII veteran.

Sidney Street was a black man.

Sidney Street burned the flag because he just heard on the radio that James Meredith had been shot. Meredith was marching from Memphis to Jackson, marching for the proposition that a man should be able to walk the streets in his own country to express himself, whatever his color.

Before he burned the flag, Sidney Street carefully lay a piece of newspaper on the ground, so the American flag would not touch the ground. As he burned it, he said “if they can do that to Meredith, we don’t need an American flag.”

He was prosecuted and convicted, because of course he was. Remarkably, the Supreme Court reversed — not because it believed the First Amendment protects flag burning (that would take 20 more years), but because the statute had vague terms allowing punishment of Street’s “contemptuous” words about the flag.

America is a place where a black man gets prosecuted for burning a flag in outrage over the attempted assassination of a civil rights hero. America has been, is, and likely will continue to be a country in which officialdom is more offended by the black man’s expression of outrage than by the injustice that occasioned it.

It is that America that I believe cannot be trusted with broad, vague, easily manipulated exceptions to free speech.

Elie: Thank you. I’m liking how this ends with you reminding me America is a shittier place for black people than I’d like to admit.

White: Elie, thanks for the opportunity. It’s always a pleasure to talk to you.

Elie Mystal is the Executive Editor of Above the Law and a contributor at The Nation. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.