First Amendment With the recent verbal fireworks surrounding the primary process, it is interesting to look at the First Amendment and what is and is not protected speech. Many people just spout words thinking everything is protected by the First Amendment. This is not the case.
My focus was “hate speech” which we are hearing a great deal about. Hate speech IS protected by the First Amendment, it may, however, be a crime. Additionally, if the hate speech constitutes “fighting words,” it is not protected. Fighting words are speech that may be used to inflame someone and that will likely result in physical retaliation. This can include words that can incite violence or encourage the commission of illegal acts. To see whether words are “fighting words,” we ask whether an average person would view the language as being inherently likely to provoke a violent response. So, Hate Speech is protected by the First Amendment unless it can be categorized as Fighting Words. Be careful – just because it’s protected by the First Amendment doesn’t mean it’s NOT a crime.
Another category of speech that is NOT protected by the First Amendment is Defamation – Slander and Libel. This is making false statements about someone, particularly in their business which may damage their reputation. This is another big topic in the election. If a statement is true, the person against whom the statement is made cannot sue as it isn’t defamation. This is the old adage, “truth is a defense.” If the statement is false, however, the publisher of the statement can be sued and damages awarded to the injured person.
Other non-protected speech is child pornography, copyright violations, and certain threats.
The First Amendment is a much litigated topic and is one of the paramount principles of our great nation.
Contact us.
My focus was “hate speech” which we are hearing a great deal about. Hate speech IS protected by the First Amendment, it may, however, be a crime. Additionally, if the hate speech constitutes “fighting words,” it is not protected. Fighting words are speech that may be used to inflame someone and that will likely result in physical retaliation. This can include words that can incite violence or encourage the commission of illegal acts. To see whether words are “fighting words,” we ask whether an average person would view the language as being inherently likely to provoke a violent response. So, Hate Speech is protected by the First Amendment unless it can be categorized as Fighting Words. Be careful – just because it’s protected by the First Amendment doesn’t mean it’s NOT a crime.
Another category of speech that is NOT protected by the First Amendment is Defamation – Slander and Libel. This is making false statements about someone, particularly in their business which may damage their reputation. This is another big topic in the election. If a statement is true, the person against whom the statement is made cannot sue as it isn’t defamation. This is the old adage, “truth is a defense.” If the statement is false, however, the publisher of the statement can be sued and damages awarded to the injured person.
Other non-protected speech is child pornography, copyright violations, and certain threats.
The First Amendment is a much litigated topic and is one of the paramount principles of our great nation.
Contact us.
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