Free speech is a basic right in America, protected by the First Amendment and centuries of jurisprudence.
But the rise of power of social media -- and a shocking increase in hate crimes -- has prompted discussion among scholars of possible limits on hateful and threatening comments.
“People can say all kinds of hateful things,” said Professor Glenn Smith, a constitutional law expert at Cal Western Law School. “They can call for crimes against people, as long as it's not an incitement of immediate lawless action and likely to happen. And that's a very high standard.”
Smith told NBC 7 that our nation’s bedrock commitment to free and unfettered speech is all but unique among nations.
Speaking of the vicious, hateful comments made by alleged Poway shooter John Earnest and others on “8chan” and other uncensored, unmonitored internet message boards, Smith said racist, homophobic talk and threats of violence are not subject to criminal prosecution or civil sanctions.
“The heart would say, ‘This should be stopped.’ But the constitution and the First Amendment would say, ‘It can’t be.’”
Smith said our unwavering support of First Amendment speech rights is rooted in the desire of the Founding Fathers to prevent the criminalization of dissent.
“Americans are very skeptical whenever government tries to suppress speech, even if it’s claiming very good reason to do so,” Smith said. “So I think we err on the side of not allowing government suppression unless it falls within an extreme category."
“The people who are initially suppressed may be people about whom everyone says, ‘Oh, yeah, that should be suppressed.’ But then it goes down the road, and then you end up with the freedom of dissent and the freedom to exercise your individual citizenship rights being trampled on.”
Smith did note that the rise of social media and the concurrent increase in hate crimes have prompted even some outspoken free speech advocates to rethink their quasi-absolutist position.
He said there is some theoretical discussion among experts of possible exceptions to free-speech, protections that would allow prosecution and possible sanctions for inciting harmful, lawless action that is likely to happen, without being “imminent”.
But Smith said the law enforcement and the courts have not yet confronted such an exception.