San Francisco Chronicle: As a First Amendment lawyer, I was recently asked whether the government can censor or punish hate speech like the manifesto the El Paso shooter is suspected of posting on the online forum 8chan. The answer is straightforward: Unless it falls within one of a few narrowly defined categories of unprotected speech such as “incitement to imminent lawless conduct” or “true threats,” speech that labels entire classes of people as subhuman and deserving to be attacked or even killed is protected by the Constitution.
Hate speech outside these narrowly circumscribed categories cannot be punished by the government, much less subjected to prior restraint. KKK cross-burnings, Nazi marches and anti-gay protests at a soldier’s funeral are all protected. The same is true of anonymous online expressions of hatred for all Jews, Mexicans or members of the so-called migrant caravans. Thomas Jefferson explained the Founding Fathers’ rationale: “We have nothing to fear from the demoralizing reasonings of some, if others are left free to demonstrate their errors and especially when the law stands ready to punish the first criminal act produced by the false reasonings.”
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