If the Judiciary removed the two conditions from the Brandenburg v. Ohio rule for “incitement of illegal activity,” less speech would be protected by the First Amendment. Would you support this idea if the result was to punish more instances of “hate speech?”
Brief Fact Summary
Freedom of speech is one of the most fundamental privileges that the constitution of the United States attempts to protect. Through the first and the fourteenth amendments, the U.S. statutes attempt to ensure that all the citizens can express themselves without fear of being arrested or intimidated. The case of Brandenburg v. Ohio portrays one of the instances in which the U.S. supreme court, through their ruling, uphold the freedom of speech. If the court removed two statements detailing that production of imminent lawlessness and if the speech is likely to incite or produce such actions, then more speech would be considered hate speech and would be punishable under the law. My view is that the United States court should not limit the freedom of speech even though it could lead to the characterization and punishment of more speech as hate speech mainly because it is unconstitutional and would result in the suppression of the freedom of speech.
Reducing the amount of speech protected by the first amendment would not be ideal, especially in a democratic country where the citizens are supposed to have freedom of speech and expression (Harmata, 2019). One of the primary characteristics of democratic countries is the ability of the citizens to express themselves respectfully and let their opinions and suggestions be heard. It is a necessity that the citizens enjoy the freedom of speech and expression at a full measure. Significantly if the freedom does not interfere with the constitutional rights of others and through the freedom of speech, the citizens are privileged to enjoy increased rights and privileges as ideas could easily be shared as a way of increasing and generating more information. In this sense, all the citizens, irrespective of their status in the country, have the right to converge and share ideas with people who share in their opinions and ideologies without being burred by the constitution or being subjected to criminal trials. Characterizing increased speeches as hate speech and punishing them could be viewed as limiting the freedom of speech and controlling the type of information that the citizens are allowed to talk about. The argument on reducing the scope of ideas that the citizens would be allowed to share would suggest that it is aimed towards creating lawlessness and order. In essence, the uncontrolled freedom of speech could be considered as one that results to the sharing of derogative ideas that would eventually result in undesired negative consequences such as profiling of some groups of citizens by others (Weinstein, 2017). However, it also limits the freedom to spread ideas and ideologies that could be essential in facilitating community development and necessary for preventing oppression (Kochoska, 2017). It is consequently necessary to uphold the First Amendment requirements that freedom of speech should be provided as long as it does not result to imminent harm or chaos.
Characterizing and punishing more speech could also lead to the oppression of various groups and individuals. Even though the principles of democracy attempt to advocate for the equality of all citizens, it is inevitable to have minority populations in the country which naturally do not conforms to the expectations of the majority. In most instances, the differences result from the dominant biological and characteristics such as race and gender. In other instances, it could be as a result of the differences in ideologies and beliefs. Even in democratic societies such as the United States, the minorities who do not conform to the set principles and characteristics of the majority population face oppression because of their differences. The freedom of speech is an essential move as it allows the oppressed societies and individuals to express their ideas and grievances to the authorities (Boongaling, 2018). The freedom of speech form the avenue through which the minority populations can formally or informally express themselves and fight for their rights. However, in the case that the freedom of speech is limited and more speech is characterized as hate speech, some of the affliction topics that the groups and individuals face could be characterized as hate speech. The afflicted persons may be barred from talking about them. As a result of the limitation, there is the possibility of continued affliction and unfair treatment, especially for groups that lack the capacity and ability to represent and fight for their rights.
Creating and facilitating effective space for the freedom of speech is essential as it provides political and civil power for the citizens. Following the offices that the governments and the government personalities hold, they could become oppressive if the citizens do not speak out and point out the bad behaviors and government misconduct. Governments will inherently work better if they are aware that the citizens could call them out for various gross misconducts and violate the principles of the various offices they hold. Presentation of more speech as hate speech creates more room for oppressive regimes to suppress their subjects. Oppressive regimes would generate their legitimacy because there are no complaints channeled against them or their conduct. In this sense, these regimes are likely to continue oppressing their subjects by introducing more oppressive laws and amendments. If the freedom of speech and expression is guaranteed, the oppressed subjects have an increased ability to fight for their civil liberties and civil rights (Schauer, 2017). If the freedom of speech is taken away, the citizens are subjected to conditions that deny them the right to speak up against the oppressive regimes (Hillesheim, 2018). Despite the oppressions they could face, the limitation of speech denies individuals the freedom to express themselves. It consequently results in continued oppression and denying individual freedoms and liberty.
The constitution of the United States, in a significant way, supports the freedom of free speech and expression. The first and the fourteenth amendments specifically address freedom of speech and the freedom of expression. According to the first amendment, the Congress of the united states is prohibited from creating any laws that abridge the freedom of speech or the freedom of the press (Epstein, 2018). It also prohibits the creation of laws that prohibit the right of the people to have peaceful assemblies and to petition the government for the redress of grievance (Campbell, 2017). Following the provisions provided by the first amendment, most of the rights taken from the freedom of speech and consequently considered as hate speech are significant factors that form part of the constitutional liberties of the citizens of the United States. Consequently, increasing the scope of what is considered hate speech would be unconstitutional and oppressive.
Similar to the first amendment, the fourteenth amendment also advocates for the freedom of speech and expression. The amendment elaborates that any state should not deny the equal rights of conscience, the freedom of speech or the freedom of the press, and the right of trial by jury in a criminal case (La Raja et al. 2019). From the amendment, freedom elaborates the freedom of speech as an essential way of facilitating expression and sharing information. Passing the amendment by Congress makes the freedom of speech a constitutional right that should consequently not be limited by any states. In essence, it elaborates the freedom of speech as an essential way of facilitating the generation and accessing of information from the press and facilitating expression in the process of case hearing and criminal trials (Kendrick, L. (2018). By increasing the scope of what is considered and punishable as hate speech, the information would be limited as the press will be limited to the issues they could report about. Additionally, the justice system is negatively affected, and the right to justice would be limited as the jury trials will be affected.
Boongaling, J. I. K. (2018). Current Issues in Philippine Jurisprudence: Understanding the Right to Free Speech and Expression. Asia-Pacific Social Science Review, 17(3), 166-180.
Campbell, J. (2017). Natural Rights and the First Amendment. Yale LJ, 127, 246.
Epstein, R. A. (2018). A Common Law for the First Amendment. Harv. JL & pub. Pol’y, 41, 1.
Harmata, R. (2019). Freedom of speech: Friend or foe? An investigation of epistemic violence in academic spaces. Industrial and Organizational Psychology, 12(4), 419-420.
Hillesheim, J. (2018). “sanctuary of belief and conscience”: us supreme court, freedom of speech, and Brandenburg v. Ohio (Doctoral dissertation, University of Nebraska at Kearney).
Kendrick, L. (2018). Another First Amendment. Columbia Law Review, 118(7), 2095-2116.
Kochoska, J. (2017). Freedom of speech vs hate speech in democratic society. Teacher-International Journal of Education, 13, 12-17.
La Raja, R. J., Schaffner, B. F., Mutch, R. E., Piety, T., Post, R. C., & Karlan, P. S. (2019). Q5. Does the federal constitutional right to freedom of speech limit how states can restrict an individual’s right of self-expression? Free Speech and Censorship: Examining the Facts, 21.
Schauer, F. (2017). Free Speech, the Search for Truth, and the Problem of Collective Knowledge. SMUL Rev., 70, 231.
Weinstein, J. (2017). Hate speech bans, democracy, and political legitimacy. Const. Comment., 32, 527.
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