I'm calling out when they are trying to recruit others to commit crimes and individual rights violations not their right to free speech and when the context is them doing that in public. An example would be someone trying to recruit individuals to commit terrorist activity in public. That is initiation of force.
You can’t yell “Fire” in a crowded theater, you can’t commit fraud, and you cannot do *direct* incitement to violence. Those are not protected by the First Amendment.
And providing *material* support for terrorists is not protected either.
But “recruiting” people to harass Jews, or suggesting that people join clearly unlawful demonstrations or perform other “individual rights violations” is indeed protected by the First Amendment.
As it should be.
The First Amendment is there to protect the very speech that some people consider “hate speech”. We would be much worse off if our government could, as they do in several European countries, decide what speech is not acceptable.
Nice article. In part, it's helpful because it serves as a reminder that some common distinctions (e.g., "protected speech" versus "unprotected conduct") serve more to confuse than to illuminate. The statement about "threats" followed by the assertion that "[s]uch conduct is clearly unprotected by the First Amendment" is illustrative.
Not all so-called threats are unprotected. As Trump will learn (regarding Comey's mere photo of the mere numbers 86 47), not everything that a snowflake claims is a "threat" can be punished. As SCOTUS emphasized in Counterman v. Colorado in 2023, "the First Amendment" necessarily "requires proof that the defendant had some subjective understanding of the threatening nature of his statements." At the very least, the government must prove "that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening [actual physical] violence."
In addition, although a threat always is conduct, it also very often is speech. Moreover, a threat always is conduct even if it is mere speech. All forms of expression and communication necessarily constitute conduct. "Speech" necessarily means expressive conduct. Even in the most narrow sense of the word "speech" is the verbal expression of words. Words not expressed are mere thoughts.
Everyone would better understand what the First Amendment protects if we would use the words that our Constitution uses and if we understand their purpose. Our Constitution expressly protects "the freedom of speech" or "the freedom of the press," not mere "speech" and not merely "the press."
The expressions "the freedom of speech" and "the freedom of the [printing] press" (aka "the liberty of the [printing] press") were not meant to be taken literally. They are idiomatic expressions that symbolize our right to express ourselves and communicate.
Copious conduct counts as "speech." Wearing expressive attire (including uniforms and costumes), flying flags, making gestures, erecting structures (Liberty Poles), decorating trees (including Liberty Trees) and even hanging effigies or burning effigies (or crosses) has been considered protected expression and communication since before the U.S. became a nation.
The "freedom of the press" even more obviously cannot be taken literally. In the 1780's and 1790's, the press didn't mean any speech or conduct. "The press" meant an inanimate object, a printing press, which, alone, did nothing. It did nothing relevant without a person arranging lead letters on it, applying ink and physically pressing paper (or fabric) against the lead. See, e.g., https://youtu.be/SsdvcuDApdU?si=-Mk488gkrKdO5hrI.
Moreover, copious expression and communication is prohibited or restricted (e.g., in any limited public forum) or penalized (e.g., defamation) or punished (e.g., true threats, perjury, exposing certain national secrets). Our Constitution even expressly compels some speech. See, e.g., the two oath clauses and the Sixth Amendment requiring a "public trial" and that a defendant "be confronted with the witnesses against him" and "have compulsory process for obtaining witnesses in his favor."
To point out the obvious, it takes time and money to fight the federal government and to litigate these matters. The feds can often bring pressure and resources to bear that private litigants can’t. So yes, colleges are sophisticated actors but they also have their eyes on the bottom line like any other organization. I’m not defending Brown’s actions - I have no idea at what stage of the proceedings it agreed to the settlement - but these practical considerations at least deserve a mention in your article.
But free speech cannot support/promote crimes and terrorism or any form of individual rights violations.
Free speech very much includes the right to support criminal behavior and violations of individual rights.
Part of living in a free society is that I have the freedom to think and say that certain laws or rights are stupid and unethical.
You are mostly correct and he is mostly incorrect about free speech, of course.
But active support of crimes and terrorism is not free speech. That is conduct.
If all you mean by “support” is “cheering for” the terrorists and criminals, then of course you are correct.
I'm calling out when they are trying to recruit others to commit crimes and individual rights violations not their right to free speech and when the context is them doing that in public. An example would be someone trying to recruit individuals to commit terrorist activity in public. That is initiation of force.
You can’t yell “Fire” in a crowded theater, you can’t commit fraud, and you cannot do *direct* incitement to violence. Those are not protected by the First Amendment.
And providing *material* support for terrorists is not protected either.
But “recruiting” people to harass Jews, or suggesting that people join clearly unlawful demonstrations or perform other “individual rights violations” is indeed protected by the First Amendment.
As it should be.
The First Amendment is there to protect the very speech that some people consider “hate speech”. We would be much worse off if our government could, as they do in several European countries, decide what speech is not acceptable.
Nice article. In part, it's helpful because it serves as a reminder that some common distinctions (e.g., "protected speech" versus "unprotected conduct") serve more to confuse than to illuminate. The statement about "threats" followed by the assertion that "[s]uch conduct is clearly unprotected by the First Amendment" is illustrative.
Not all so-called threats are unprotected. As Trump will learn (regarding Comey's mere photo of the mere numbers 86 47), not everything that a snowflake claims is a "threat" can be punished. As SCOTUS emphasized in Counterman v. Colorado in 2023, "the First Amendment" necessarily "requires proof that the defendant had some subjective understanding of the threatening nature of his statements." At the very least, the government must prove "that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening [actual physical] violence."
In addition, although a threat always is conduct, it also very often is speech. Moreover, a threat always is conduct even if it is mere speech. All forms of expression and communication necessarily constitute conduct. "Speech" necessarily means expressive conduct. Even in the most narrow sense of the word "speech" is the verbal expression of words. Words not expressed are mere thoughts.
Everyone would better understand what the First Amendment protects if we would use the words that our Constitution uses and if we understand their purpose. Our Constitution expressly protects "the freedom of speech" or "the freedom of the press," not mere "speech" and not merely "the press."
The expressions "the freedom of speech" and "the freedom of the [printing] press" (aka "the liberty of the [printing] press") were not meant to be taken literally. They are idiomatic expressions that symbolize our right to express ourselves and communicate.
Copious conduct counts as "speech." Wearing expressive attire (including uniforms and costumes), flying flags, making gestures, erecting structures (Liberty Poles), decorating trees (including Liberty Trees) and even hanging effigies or burning effigies (or crosses) has been considered protected expression and communication since before the U.S. became a nation.
The "freedom of the press" even more obviously cannot be taken literally. In the 1780's and 1790's, the press didn't mean any speech or conduct. "The press" meant an inanimate object, a printing press, which, alone, did nothing. It did nothing relevant without a person arranging lead letters on it, applying ink and physically pressing paper (or fabric) against the lead. See, e.g., https://youtu.be/SsdvcuDApdU?si=-Mk488gkrKdO5hrI.
Moreover, copious expression and communication is prohibited or restricted (e.g., in any limited public forum) or penalized (e.g., defamation) or punished (e.g., true threats, perjury, exposing certain national secrets). Our Constitution even expressly compels some speech. See, e.g., the two oath clauses and the Sixth Amendment requiring a "public trial" and that a defendant "be confronted with the witnesses against him" and "have compulsory process for obtaining witnesses in his favor."
To point out the obvious, it takes time and money to fight the federal government and to litigate these matters. The feds can often bring pressure and resources to bear that private litigants can’t. So yes, colleges are sophisticated actors but they also have their eyes on the bottom line like any other organization. I’m not defending Brown’s actions - I have no idea at what stage of the proceedings it agreed to the settlement - but these practical considerations at least deserve a mention in your article.