Does the First Amendment protect hate speech on Facebook?

Amy Feldman from the Judge Group looks at a story making national headlines about a fatal bullying incident on Facebook, and if the First Amendment protects hate speech on the Internet.

FacebookThe Facebook post was chilling:

Yes, ik [I know].  I bullied Rebecca nd she killed her self. But IDGAF [I don’t give a f***]

“Rebecca” referred to Rebecca Ann Sedwick, a 12-year old Florida girl who had been taunted for more than a year online with posts calling her ugly and telling her that she should drink bleach and die before she took her own life. The girl who posted the message was one of the people who allegedly—and according to her own Facebook post, admittedly—bullied her.

Polk County Sheriff Grady Judd had enough. “That post was the tipping point,” he said. He arrested the poster and another girl who had allegedly taken part in the bullying, charging them with felony aggravated stalking. “She forced this arrest,” he said.

But was the arrest for her actions or for her hateful words? And if the arrest was made because of her Facebook post in which she expressed no remorse, is it a violation of her First Amendment right to free speech?

There are many people who believe that the First Amendment gives people the right to say whatever they want, whenever they want to. Not true.

There are certain forms of speech that are not protected by the First Amendment. As Justice Oliver Wendell Holmes famously stated in the 1919 case Schenck v. United States: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

In addition, speech in which a person threatens to commit a crime that would reasonably result in death, terror, serious injury, or serious physical property damage is not protected by the First Amendment. That type of speech is called a terroristic threat, and it is considered a crime in all 50 states and the District of Columbia.

There is also another form of speech that is not protected by the First Amendment, and that is a type of speech involving a repeated course of communication either in person, by mail, telephone, social media, or other forms of electronic communication that is designed to put a person in reasonable fear for his or her safety or is designed to cause severe emotional distress.

This form of communication may be illegal under state law as the crime of stalking (where the defendant follows or tracks the actions of another person) or harassment (repeated unwanted communication to another person that puts him or her in reasonable fear of bodily harm or creates severe emotional distress).

Finally, there is a form of speech known as “fighting words” that are words without social value directed to a specific individual, that would provoke a reasonable member of the group about whom the words are spoken. If you know that someone is likely to haul off and hit you if you call him a racial epithet, you’ve spoken fighting words and your speech is not protected by the First Amendment.

But what many people don’t realize is that what people refer to as “hate speech”—by which they mean speech that is hateful—is protected by the First Amendment.

This is different from a “hate crime,” a crime committed against a person because of that person’s membership in a particular group, be it based on the victim’s religion, ethnicity, race, or sexual orientation. The fact that the crime was based on hatred of a particular group can increase the sentence if the defendant is convicted, but the defendant is not being prosecuted because of what he said, but rather what he did. Hate speech, expressing your hatred toward someone or something, is not a crime except where it violates the other laws described above.

Rebecca Ann Sedwick had faced relentlessly mean comments, physical acts of violence against her, and taunts in person and over social media. Her parents removed her from the school at which she faced the bullying, first home schooling her and then sending her to a different middle school academy. But the precautions were not enough to save a child who had been so traumatized. On September 9, 2013, the 12-year-old jumped to her death.

The girls who were arrested will have a hard time finding people to defend their actions as appropriate or even understandable. But the issue is did they have the legal right to post what the sheriff alleges one of the girls posted, that she doesn’t care that Rebecca died?

If the sheriff can show that the actions leading up to Rebecca’s suicide met the standard for the crime of stalking in Florida, then the girls can face charges for their actions which allegedly included both physical assaults and threats of violence in addition to the taunts that she should drink bleach and die.

But by definition, after September 9, Rebecca was beyond the reach of the ugly taunts. As a result, the post in which the girl stated “IDGAF” could not violate a law against stalking or harassment. It was her constitutional right to say it. If the arrest was based on the IDGAF post rather than on the history of the alleged stalking up to the date of the suicide, it would violate the poster’s First Amendment right to free speech.

What do you think? Should there be an exception to the First Amendment for hateful speech? Let us know your opinion!

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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