You are on page 1of 2

while an originalist might object that any abridgment of the first amendment is unacceptable, Americans understand that the

Bill of Rights is best interpreted within a contemporary context: limitations to the first amendment may be-- and should be-applied when speech poses an imminent threat of lawless action. In such cases, free speech falls into a legally unprotected category and may be abridged. in certain cases involving specific threat, there is an implied mandate within the law requiring judicial intervention that may involve the interdiction of speech.
Unless online hate speech crosses the line into incitement to imminent lawless action or true threats, the speech receives protection under the First Amendment. By David L. Hudson Jr. First Amendment scholar topic=internet_hate_speech Incitement to imminent lawless action In Brandenburg v. Ohio (1969), the Supreme Court said that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Most online hate speech will not cross into the unprotected category of incitement to imminent lawless action because it will not meet the imminence requirement. A message of hate on the Internet may lead to unlawful action at some indefinite time in the future but that possibility is not enough to meet the highly speech-protective test in Brandenburg. For this reason, some legal commentators have urged that the Brandenburg standard be modified with respect to online hate speech. One commentator wrote in 2002: New standards are needed to address the growing plague of Internet speech that plants the seeds of hatred, by combining information and incitement that ultimately enables others to commit violence. 2 Another agreed, writing: Although Brandenburg may be suitable for the traditional media outlets, which were well-established when it was decided, Internet speech and many unforeseen changes have made such a standard outdated. 3 Still another called for a revised imminence requirement in Internet hate-speech cases to update Brandenburg and make it applicable online. 4

T True threatsSome online hate speech could fall into the unprotected category of true threats. The First Amendment does not protect an individual who posts online I am going to kill you about a specific individual. The Supreme Court explained the definition of true threats in Virginia v. Black (2003) in which it upheld most of a Virginia cross-burning statute this way:

True threats' encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protect(s) individuals from the fear of violence and from the disruption that fear engenders, in addition to protecting people from the possibility that the threatened violence will occur. The Court in Virginia v. Black reasoned that crosses burned with an intent to intimidate others could constitutionally be barred as provided in the Virginia law. (But the Court did strike down a part of the law that said there was a presumption that all cross-burnings were done with an intent to intimidate; for instance, in the consolidated cases the Court considered, one involved a cross-burning with a property owner's permission.) Thus, online hate speech meant to communicate a serious expression of an intent to commit violence and intimidate others likely would not receive First Amendment protection. A few cases have applied the true-threat standard to online speech. In Planned Parenthood v. American Coalition of Life Activists (2002), the 9th U.S. Circuit Court of Appeals held that some vigorous anti-abortion speech including a Web site called the Nuremberg Files that listed the names and addresses of abortion providers who should be tried for crimes against humanity could qualify as a true threat. The 9th Circuit emphasized that the names of abortion providers who have been murdered because of their activities are lined through in black, while names of those who have been wounded are highlighted in grey.