Kathy Hochul botches First Amendment discussion

Bill Lumbergh, Kathy Hochul

Office Space fictional character Bill Lumbergh is pictured alongside New York Gov. Kathy Hochul

If governor of New York Kathy Hochul (D) could go ahead and find out about the first change, that would be great.

During interviews with reporters over the following days The horrific mass shooting on Saturday in Buffalo, New York, Hochul summed up the free speech jurisprudence with a catastrophic inaccuracy that is seriously inappropriate for a sitting government official.

In the video below, Hochul can be seen in an interview with ABC’s George Stephanopoulos in which she noted that “corrupt” white supremacy ideologies are “fermenting on social media” and “spreading like a virus.” Hochul urged tech companies to do more to monitor and take down dangerous individuals on social media platforms. Without distinguishing between private measures (such as the type of user surveillance Hochul suggested by private companies) and state measures, Hochul ended the interview by summarizing her view of state power to regulate language.

“I will protect the First Amendment every day of the week,” Hochul promised. “But you don’t protect hate speech. One does not protect incendiary speech. Yelling “fire” in a crowded theater is not allowed. There are restrictions on speaking…”

There’s a lot to unpack in Hochul’s testimony – a little bit of it is true, but most of it is dead wrong.

Let’s start with some First Amendment basics. According to the First Amendment, freedom of speech is a protected right. However, like other rights, freedom of expression is not absolute. Certainly the government of expression should be viewed with suspicion because there are strict limits within which the government has the power to interfere with freedom of expression.

Over the decades, a tremendous body of case law has developed, crafting specific rules for how government (both local and national) can legislate speech. Some forms of speech have been classified as “unprotected” by the First Amendment, such as B. Libel and Perjury. Of course, to determine whether a particular statement amounts to libel or perjury (and thereby forfeits First Amendment protection), one must conduct an independent analysis. The same applies to unprotected statements because they constitute “obscenity” or “battle words”.

When Hochul referred to the widely misunderstood example of the fire in a theater, she probably did so to point out that there are many circumstances in which it is perfectly legal for the government to regulate and even ban speaking. The point was spot on (although Hochul’s example is pathetically bad at hitting it).

Incidentally, my Law&Crime colleague Aaron Keller discussed the theater fire example at length in 2021 as President Joe Biden tried awkwardly to express the same point in the same way as Hochul. Keller explained:

Biden was essentially saying that the Constitution does not protect the right to shout “fire” “in a crowded movie theater.” He’s wrong. People can constitutionally yelling “fire” in crowded gatherings – if it actually burns. The often misquoted expression usually misses this important distinction.

Because Biden and Hochul omitted the key aspect of the quote’s “falseness,” the meaning is not entirely accurate. Some of the language is protected and therefore essentially untouchable by government regulations. Other speech is fair game for government regulation. The distinction has nothing to do with theater and everything that has to do with danger.

Also, as Keller pointed out, there have been broader jurisprudential shifts that have long ago rendered obsolete the long-established and tired trope of “fire in a crowded theater.” The theater/fire analogy is rooted in one Oliver Wendell Holmes Jr. line one Schenck vs. USAa 1919 case that was mostly overturned from Brandenburg versus Ohio in 1969. The citation somehow stuck long after the law associated with it hadn’t.

What about “branded speech” or “hate speech”?

Hochul listed “arson” and “hate speech” as two other categories that “won’t protect you”. Once again, she listed two other categories, neither of which are categorically unprotected under First Amendment law.

Brandenburg versus Ohio sets the basic analytical framework Courts use to assess claims to freedom of expression. Under Brandenburg, Remarks may be prohibited if they are both (1) “designed to incite or bring about an imminent lawless act” and (2) “capable of inciting or causing such act.” In other words, what matters is the risk of a hazard. If a utterance is likely to lead to an imminent breach of law or imminent danger, the government can actually step in and ban that utterance. For that reason, bans on falsely alerting people in a crowded place where a dangerous rush can occur would likely stand up to constitutional scrutiny.

This proves, however, that government action aims only at the kind of speech that would satisfy them Brandenburg requirements is not a simple matter. Rarely does speech rise to a level “likely to immediately arouse or give rise to lawless action” such that the restriction of that speech can withstand First Amendment challenge. Even if this is the case, the rule in question must not be excessive and must instead prohibit unprotected speech without violating protected speech.

In fact, the test is very, very strict: Brandenburg argued that a speech at a Ku Klux Klan rally could not be prosecuted because the law criminalizing the speech left no room for rhetoric, however unpopular, that did not incite or produce imminent lawless action.

“[T]he mere abstract doctrine. . . of moral appropriateness, or even moral necessity, to resort to violence and coercion,” the court wrote of the KKK speech, “is not the same as preparing a group for violent action and arming it for such action.” (Most of the Quote is actually from a previous case.)

Hochul used the word “arson,” which was perhaps meant to be a synonym for “incitement.” At best, its use leads to an incomplete statement. At worst, it’s just plain wrong.

Merriam-Webster Are defined “Incendiary” as “prone to excite or ignite”. While it is entirely possible that some “incendiary” speeches reach the level of risk set by Brandenburg, the two concepts are certainly different. One could easily imagine language “prone to arousal or excitement” that does not necessarily threaten immediate lawlessness. Therefore, Hochul’s misunderstanding creates its own standard on this point, throwing in a legally irrelevant term and mischaracterizing one of the very narrow circumstances in which language is unprotected.

However, Hochul’s use of “hate speech” is a far more serious legal sin.

“Hate Speech” is not a legal term with a specific definition. Rather, it is a colloquial term usually intended to characterize overtly offensive remarks and usually refers to racist, sexist, homophobic or anti-Semitic insults. Many use the term “hate speech” as a sort of corollary to the term “hate crime” (whose history I detail in detail). here) – a lack of precision that often leads to misunderstandings about the legal status of “hate speech”.

The US Supreme Court has never ruled that “hate speech” constitutes a new category of unprotected speech. Some “hate speech” may be obscene, while others incite violence; At those bases, such a speech could be denied the protection of the First Amendment. However, the classification of statements as “hateful” or “hate speech” does not independently make those statements an appropriate target for government action.

Take the KKK speech, which was the crux of the matter Brandenburg Test: whether a piece of so-called “hate speech” does not produce or incite imminent lawless action, but stands as an abominable and repugnant thought in the marketplace of ideas, then it cannot be prosecuted.

When the First Amendment is discussed in legal circles, “hate speech” is often used as the primary example of the type of speech that is detested but still protected by law. With that in mind, Hochul’s statement is that you will “protect the First Amendment every day of the week,” but that “hate speech will not be protected” is a truly pathetic statement of the governor’s understanding of her own responsibilities as law enforcement officials.

[Images via YouTube/screengrab, ABC News screengrab]

This is an opinion piece. The views expressed in this article are those of the author only.

https://lawandcrime.com/opinion/if-our-government-officials-understood-the-first-amendment-that-would-be-great/ Kathy Hochul botches First Amendment discussion

James Brien

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