Law and Policy and History  

Dr. Clay Calvert: Hate Speech, Misinformation and First Amendment Implications of a More Conservative Court

Clay Calvert, Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project, was interviewed on Oct. 21, 2020 about First Amendment issues.

Below the video is an edited transcript of that interview.

There is some confusion about protections on hate speech. What is protected speech and what is not?

Calvert: The First Amendment to the United States Constitution generally protects what many people would consider to be hate speech. We might consider that to be an instance of First Amendment exceptionalism. In other words, the First Amendment protects an exceptional amount of speech that many other countries might not protect.

The United States Supreme Court has carved out a number of different categories of speech that are simply not protected. Examples of unprotected categories include true threats of violence, fighting words, obscenity, and child pornography. But the United States Supreme Court has never carved out an unprotected category of speech called hate speech.

In order for hate speech to not be protected under the First Amendment, the use of that language would have to fall within another existing non-protected category. For instance, the use of offensive or hateful speech in a fighting words context would not be protected. The use of hateful offensive language would not be protected in a true threats context or in an incitement to violence context.

So the big picture is that, generally speaking, offensive, hateful language is protected by the First Amendment.

The other thing that people need to understand about the First Amendment is that it’s a viewpoint-neutral document. It says, “Congress shall make no law abridging freedom of speech or the press.” It doesn’t say good speech or bad speech. The government must remain neutral when it comes to private speech, in terms of censoring it. The government cannot take sides. It cannot say only pro-choice speech and not pro-life speech or vice versa on any particular issue. That would be viewpoint-based censorship, and it would be unconstitutional.

Many social media platforms, including Facebook, Twitter and YouTube, have started deleting posts from “hate groups.” Does that pose any legal risks for them?

Calvert: One of the interesting things that most people don’t understand about the First Amendment is that it only protects against government censorship, not censorship by private entities like social media platforms. So when Twitter and Facebook choose to remove content from their platforms, that does not actually raise a First Amendment issue because the First Amendment only protects us from government censorship, not censorship by private entities.

The danger would come if a company such as Twitter or Facebook is violating its own terms of service or terms of use, more of a contractual obligation than a First Amendment obligation. So if Facebook unfairly enforces its policies in a viewpoint-based manner, that might be a breach of contract. But, so far the courts, including the United States Court of Appeals for the Ninth Circuit in a recent case, have been clear that social media platforms are not government entities or state actors. They are private actors.

When someone is posting knowingly false speech, is that also protected by the First Amendment?

Calvert: The Stolen Valor Act was a federal statute that made it a crime to falsely state that you had won a Congressional Medal of Honor. The United States Supreme Court, in a case called “Alvarez vs. United States,” struck down that law. Basically, it’s saying that there was a right to lie or right to tell something false. Many people have viewed that decision very broadly and say, “Oh that gives us the protection to lie and to say anything we want.” Actually the decision was rather limited. What the court focused on was that these were simply lies in the air without any tangible harm connected to them.

So if you say something that’s false about somebody that harms their reputation, they can sue you for defamation or libel. In that case, the lie is not protected because there’s a tangible injury, the harm to your reputation. If you lie when selling your car and you fraudulently misrepresent that it has not been in an accident, that type of speech is not going to be protected by the First Amendment.

Some people argue that the spread of misinformation is more damaging to our democracy than censorship. How would you respond to that?

Calvert: I think that censorship by the government is probably the most damaging thing, especially from a First Amendment perspective. In the United States, we’ve traditionally existed under a marketplace of ideas model of free speech in which all ideas, no matter how offensive or disagreeable they may be, are protected. The problem today with a marketplace of ideas metaphor for protecting speech is that large corporations actually control much of the marketplace of ideas. They have greater access to it. They have a louder voice in the marketplace of ideas and they can skew it to their perspective.

Also, when it comes to false speech, whether it’s lies related to political matters or a hate speech, we know that the marketplace of ideas doesn’t actually drive that speech out. That speech still circulates. The goal of the marketplace of ideas metaphor was the production of truth and that false ideas would essentially be driven from the marketplace. Like products on the shelf that don’t sell well, they go away. But we know that the marketplace of ideas is not very effective in driving away misinformation.

So increasingly see a call for the government to intervene and to adopt laws that would restrict false information that is circulating in the marketplace of ideas. The notion that the government should come in and protect us smacks of paternalism in a way, that we need the government to sort out for us what’s true and what’s false. Generally speaking, First Amendment jurisprudence has been largely based on a distrust of the government. We protect speech often not because we find it valuable, but because we don’t want the government to come in and say, “Well, this speech is valueless or this speech is worth more.” And that’s an important concept.

Our distrust of the government is one of the justifications for not allowing the government to regulate more speech because the governors, the president, the Congress, shifts over the years. We have individuals who are temporarily vested with power to make determinations of what speech they may find is valuable and what speech they find is valueless. And so when you get the President of the United States changing every four, eight or 12 years, it really is temporary control of power. And so why should we trust the party that is in power at any one time to tell us what is good for us in terms of the speech that we receive, because four years later, or eight years later, the other party is going to be in, and now we’re going to trust them more than the other party? So it constantly flip-flops.

Are there any impending First Amendment cases that could be affected by a more conservative Supreme Court?

Calvert: The Supreme Court, under the leadership of Chief Justice John Roberts, has been generally considered to be very free-speech friendly. And particularly free speech friendly when it comes to what many people would consider to be offensive speech cases, as well as cases involving speech by corporations. For instance, on the offensive speech side of the equation under Chief Justice Roberts’ leadership, the Supreme Court has struck down a law in California that regulated minors’ access to violent video games. The court has protected the speech of the Westboro Baptist Church to say hateful and offensive words outside the funeral held for an American soldier who was killed in Iraq.

Obviously, when it comes to corporations and unions, the major case is Citizens United. In that case, the Supreme Court along political lines ruled in favor of the free speech rights of corporations and public unions to engage in political speech right up until an election takes place. And that decision was very controversial because it gave corporations the same First Amendment rights as individuals. The court had already recognized that businesses have First Amendment rights, but this put them on really the same playing field as individuals.

One of the more interesting things about the current Supreme Court in First Amendment cases is that, in some cases, the court is actually very united. In the case of “Snyder vs. Phelps,” which was the Westboro Baptist Church case, the court ruled eight to one in favor of the church’s right to engage in hateful, offensive speech outside a funeral. The lone dissenter in that case was Justice Alito, a conservative justice.

Where they fracture increasingly along politically perceived ideological lines  is in cases that serve for larger surrogate purposes. For instance, in 2018, by five to four, the conservative majority of the Supreme Court struck down an Illinois statute, which in fact many states have, that required public sector employees who don’t join a union to pay what’s called an agency fee. That fee covers the cost of collective bargaining activities the union does on your behalf, but it doesn’t cover other obligations, like political ads.

The Supreme Court struck that down and said that it violated an individual’s right not to be compelled to speak. The employee could say that they do not support the positions that the union is taking on my behalf. I’m not compelled to join the union, but you are compelling me to fund its speech and collective bargaining. And the Supreme Court ruled along conservative versus liberal ideological lines and struck that down in favor of the individual’s right not to speak under the First Amendment.

Also in 2018, the court ruled five to four along ideological lines in a California case where the state had mandated that crisis pregnancy centers, which are pro-life organizations, have signs in their lobbies informing women truthfully that California provided free and low-cost abortion services for women who could not afford them. Those crisis pregnancy centers objected to being forced to convey a government message because it would diminish the strength of their own message.

The court ruled that the California law violates the First Amendment rights of the crisis pregnancy centers not to be compelled to speak. The liberal justices dissented arguing that the law adds more speech to the marketplace of ideas. The women have a right to know that California provides free and low-cost abortion services. And this is simply an economic social legislation, informing women about truthful factual information.

When it comes to certain issues like labor unions and abortion, those free speech cases were really surrogates for those two issues, and that’s where you see the conservative justices striking down laws.

As the world has evolved over your years of teaching, are you teaching mass communication law differently than you did say five or 10 years ago?

Calvert: The principles of First Amendment law generally have remained the same over the course of the 25 years that I’ve been teaching at the university level. In terms of how I teach them, I think that has changed. Particularly as we see a much more fractured court along conservative and liberal lines today, it’s more than just about teaching what the law is, but also what the law could be and how the law might be changed.

For instance, when it comes to the topic of hate speech, the Supreme Court has generally been very protective of what many people would consider to be hate speech, but that doesn’t mean the court always has to be that way. The burden of hate speech is largely borne by individuals who are less able to afford the cost of it. And so it’s very easy sometimes to say, “When it comes to hate speech you have to tolerate it.” But the burden of doing so is not always fairly distributed across all individuals in society.

The discussions around the First Amendment tend to be mostly around speech, but not a lot of discussions recently around freedom to assemble and freedom of religion. Are those intertwined?

Calvert: One of the things that many people forget is that the First Amendment protects not only freedom of speech and free press, but the right of the people peaceably to assemble. And that’s very important today, especially with marches, protests and rallies that we’re seeing across the country. And so the First Amendment protects the right peaceably to assemble. It doesn’t protect violence, but it protects the ability for a group to gather.

And, in particular, it protects them in public places. The Supreme Court has said that places like public parks, public sidewalks and public streets are considered to be traditional public forums. Over time, these venues have long been recognized as places where people can assemble to engage in speech activities. So the right to peaceably assemble facilitates our right of free speech. If we couldn’t assemble peaceably on a street or on a sidewalk or in a public park or any other public space or forum, then we couldn’t engage in that speech. That’s very important to understand.

I think there are rifts today on whether First Amendment is a good thing. Do we have too much free speech? Does it only protect the speech of corporations? Does it only protect hate speech? Lost in this mix is the ability to protect the right to assemble and to engage in peaceful protests. Without that, the government would be able to shut those down immediately.

Posted: November 4, 2020
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