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by jfengel
1910 days ago
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I believe you are correct, though I wanted to clarify something. I didn't mean that there was necessarily an overlap between threats and hate speech, but only that threats were another category of speech that was forbidden but was also vague. There also happens to be some overlap, confusing the issue. But I don't know precisely on what grounds threats can be forbidden. I believe they should be, but the constitutional justification for that is unclear to me. |
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https://en.wikipedia.org/wiki/True_threat
I imagine one thing that people don't like about this doctrine is that a speaker might have the intention or effect (or both) of causing someone to feel afraid, but a court might conclude that this feeling was nonetheless unreasonable, and therefore the speech was protected.
That's a thorny problem because feeling frightened is a very serious kind of suffering, but courts don't want that possibility to swallow all of free expression doctrine (and generally don't want to give hearers a way to put a stop to someone's speech through their reactions alone https://en.wikipedia.org/wiki/Heckler%27s_veto).
Strangely, writing about this has made me think about https://repository.upenn.edu/cgi/viewcontent.cgi?article=123... and an idea that having one sender and two receivers (here, a person to whom the speech is directed, and a judge, assessing whether the speech contains a threat or not) allows for "attacks" based on the receivers' different interpretations of the same message. Maybe I'll have to think about that more and write something about it...
Edit:
Oh, also, by "such a category of unprotected speech", I didn't mean to say that there are no categories of unprotected speech in U.S. constitutional law, just that "hate speech" isn't one of them! So I think you might have been confused by an ambiguity in how I phrased that.
While there are several categories of unprotected speech in U.S. constitutional law, hate speech isn't one of them. A sort of analogy is that when various people tried to legally restrict minors' access to violent video games, opponents of this legislation successfully argued that there was no tradition in U.S. law of limiting the protection of speech because it contained explicit violence, as opposed to because it was sexually explicit. In that case the opponents agreed that there are prior concepts of "obscene as to minors" and "harmful to minors", but that these have only ever been held to relate to sexuality, not violence.
While this goes against a lot of people's intuitions, U.S. civil libertarians pretty uniformly celebrated it because the unprotected speech categories were successfully contained and kept from growing further.