Free Speech Has Limits

By Shlomo Maital  

(Burlington Free Press:  “Can you just make it so it doesn’t cover THEM?”

    David Kirkpatrick has written a stunning article in The New Yorker, August 18 [1], on how those who infiltrated the US far right have discovered terrifying insurrections and violence, brewing under the FBI’s noses. And the constitution greatly hampers the FBI from taking action or even invetigating. 

     Kirkpatrick notes a greatly ignored Supreme Court decision:  

  “….in 1989, the Supreme Court ruled that the First Amendment protects more than criticizing the government, urging its overthrow, or deprecating a racial minority. Calls for violence or even genocide are also protected—unless those calls entail “inciting or producing imminent lawless action.” [2]

      Under the First Amendment free-speech right, you can incite violence, call for violence against the government (e.g. events prior to Jan. 6, 2021, the attack on the Capitol, including Trump’s speech nearby) – provided you don’t act on it, or ‘lead to lawless action’.  (Note: Justice Hugo Black, a Democrat, dissented).

      In this, the US goes far beyond other democracies, who have enough sense to protect themselves from violent attacks.  Democracies have a need to defend themselves, and if you wait until the crazies have armed themselves and built an action plan – e.g. Jan. 6 – it may be too late.

       Free speech is an immensely important democratic right.  But like all rights, it has limits.  There ARE limits.  The things Ku Klux Klan members said in the Ohio Supreme Court case are hair-raising.  They warranted jail in other democracies. But, apparently, not in the US. 

       Democracies are not required to commit suicide. The US came close on Januar 6. It must not happen again.

[1] https://www.newyorker.com/magazine/2024/08/26/infiltrating-the-far-right    

[2] Brandenburg v. Ohio, 395 U.S. 444 (1969)   Decided June 9, 1969   A state may not forbid speech advocating the use of force or unlawful conduct unless this advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.