[Editors note: This is a version of an article published in the Out of Frame Weekly, an email newsletter about the intersection of art, culture, and ideas. Sign up here to get it in your inbox every Friday.]

Politicians were quick to call for restrictions on "hate speech" in response to the mass shooting that took the lives of 10 people at a Buffalo, New York grocery storean attack that police are investigating as a hate crime.

Byron Brown, the mayor of Buffalo, called for "ending hate speech on the internet" in media interviews after the murders.

"Hate speech should not be considered free speech, and we have to put limits on the ability for people to spread hate through the internet and through social media," he told National Public Radio.

Kathy Hochul, the state's Democratic governor, echoed Brown's words. She told ABC: "We will protect the right to free speech, but there is a limit. There is a limit to what you can do and [...] hate speech is not protected."

These comments are starkly inaccurate. The Supreme Court has repeatedly affirmed that so-called hate speech is protected under the First Amendment. While authorities can certainly take action against individuals for planning or threatening violence online, prohibiting people specifically for expressing ideological beliefs (even hateful ones) is a bad idea.

Has anyone who wants to ban hate speech ever laid out a coherent reason why doing so will in fact reduce the number of people who believe in violent ideologies? Is there any evidence that it will not simply push people who believe these ideas underground, where they will become more violent in reaction to their persecution?

Also, the ambiguous, subjective nature of banning certain ideas as hate speech lends itself to abusenot just theoretically, but also in reality. You probably heard of people given convictions for Internet trolling, such as Scottish YouTuber Mark Meechan in 2018. In a world where one person's dark humor is another person's violent racism, such cases are common. But also, did you know that France and Canada have used hate speech laws to prohibit protests against the State of Israel?

Supporters of freedom of speech have stated time and time again why this liberty is necessary for these and other reasons. But supporters of censorship like Hochul and Brown by definition do not believe in conversation and do not want to have that discussion. They want to exploit tragedies like the Buffalo shooting to guilt their opponents into accepting their demands. Beating the gavel of shock and bloodshed, they call for revoking basic constitutional liberties.

This is an authoritarian mentality that we must wipe outnot by censoring it like they would do, of coursebut by effectively communicating why it should be condemned.

Read the rest here:

Hate Crimes Are No Excuse to Throw Away the First Amendment | Matt Hampton - Foundation for Economic Education

In court, "truth" is more subjective than you may think.

THIS CASE IS DEAD AS WELL. AN 18 YEAR-OLD. >> HI, EVERYBODY. HELLO THERE. I'M DAN HAGGERTY. THIS IS THE PART OF THE NEWSCAST. WE DISCUSS THE NEWS A LITTLE BIT NOW WORKING ON A FEW DIFFERENT THINGS. BUT I DO WANT TO CHECK IN CHECK IN WITH YOU QUICKLY TONIGHT IN JUST A COUPLE OF E-MAILS BECAUSE YOU'VE BEEN SENDING SO MANY OF THEM LIKE BETSY FROM CHAPEL HILL, WHO IS APPARENTLY A BIG FAN, BUT SHE'S A LITTLE CONFLICTED. SHE EMAILS DAN WRAL DOT COM AND SAID THIS. WE FIND OURSELVES TO BE JEOPARDY. LOYALISTS IN COMMERCIAL BREAKS. WE SWITCHED WRAL NEWS. IF YOU'RE RUNNING AN IN-DEPTH FEATURE, WE'VE CAUGHT A FEW, BUT WE DON'T KNOW WHEN YOUR SEGMENTS TYPICALLY RUN ARE THE WEEKLY OR ARE THEY ON A PARTICULAR DAY AND WE JUST HAVE NOT FOUND A PATTERN YET. THAT'S PROBABLY BECAUSE THERE ISN'T A PATTERN YET, BUT WE'RE WORKING ON THAT. I'M TRYING TO BUILD A LITTLE BIT OF A TEAM POSSIBLY AND HOPEFULLY SOON WILL BE DOING SOMETHING EVERY NIGHT. IN THE MEANTIME, THAT C. WHO CARES ABOUT JEOPARDY. HONESTLY, I KNOW IT'S ON THE SAME TIME AS ME. I KNOW IT RECENTLY PASSED 60 MINUTES TO BECOME THE MOST WATCHED NON-SPORTS SHOW ON TV. BUT LET'S SEE. DO YOU REALLY WANT TO FOLLOW THE PACK AND WATCH ONE OF THE MOST POPULAR THINGS IN AMERICAN CULTURE OR AND HEAR ME OUT HERE OR >> YOU WANT TO WATCH ME. >> A GUY SPENDS SOMETIMES 8 STRAIGHT MINUTES TALKING ABOUT THINGS LIKE BRIAN AND THE OLD SUPREME COURT OPINIONS TO A COOLER THAT WAY. IN FACT, YOU CAN FIND EVERYTHING I TALK ABOUT ON WRAL'S NEW YOUTUBE CHANNEL HAVE AN ENTIRE PLAYLIST CALLED IN DEPTH WITH DAN HAGGERTY WERE STILL KIND OF FINE TUNING THE VISUALS. IF YOU LOOK AT A COUPLE OF THE THUMBNAILS LIKE THIS ONE DOESN'T EXACTLY SAY LOOK AT ME, I'M GOING TO SAY SOMETHING SMART, BUT WE'RE WORKING ON IT. OKAY. SO PLEASE STICK WITH US. YOU'LL FIND ALL THE TOPICS THAT YOU EMAIL ME ABOUT THAT WE DISCUSS HERE DURING THIS SEGMENT LIKE MY RECENT DISCUSSION WITH YOU ABOUT POLITICAL ADS, YOU MAY REMEMBER THAT WE TALKED TO A LAWYER WHO WORKS WITH CAMPAIGNS TO CHECK THEIR ADS BEFORE THEY AIR. IT CONFIRMED TO US SOMETHING THAT WAS KIND OF HARD TO BELIEVE FOR A LOT OF PEOPLE THAT EFFECTIVELY THESE CANDIDATES CAN LIE IN THESE ACTS BECAUSE OF THE FIRST AMENDMENT. AND IN THAT SEGMENT, I DISCUSSED THE CONCERNS THAT A VIEWER NAMED CAROL SHARED WITH ME RECENTLY. CARROLL SAID DAN. I WONDER ABOUT THE ETHICS OF THE STATIONS TO RUN ADS. IF THE AD IS DECLARED FALSE, BY FACT, CHECKED, WHY IS THE AD NOT PULLED THE MONEY? IS THE MONEY VALUED ABOVE THE TRUTH. I'M DISTURBED BY AS NOT BEING PULLED THE NEGATIVE. CHERI BEASLEY AD IS ONE THAT STICKS OUT. AND I KNOW THAT IT FEELS KIND OF STRANGE, BUT THE TRUTH ISN'T NECESSARILY PART OF THAT TRANSACTION. AND IN COURT, TRUTH IS MORE SUBJECTIVE THAN YOU MAY THINK. THAT'S WHY WE HAVE PEOPLE LIKE PAUL SPAY AND POLITIFACT TO EXPLAIN THE FREE SPEECH THAT YOU HEAR DURING OUR COMMERCIAL BREAK. SOMETIMES PAUL CARROLL MENTION CHERI BEASLEY AND ADD THAT RUNS ON OUR AIR MAKING SOME CLAIMS ABOUT HER RULINGS AND A DEATH SENTENCE CASE AND AN ASSAULT ON A MINOR. >> THE FORMER SUPREME COURT JUSTICE CHERI BEASLEY GO EASY ON DEFENDANTS IN A PAIR OF SENSITIVE CASES. THAT'S WHAT THE NATIONAL REPUBLICAN SENATORIAL COMMITTEE SUGGEST ITS NEW ATTACK AD. TAKE A LOOK. >> THE WORST THING COMES. THE STATION AND CHIEF JUSTICE SHERRY BEASLEY FAILED TO PROTECT THEM. THE MURDERER SHOW DOUBLING THE FACE BC. THEY CAME TO HIS SON'S MEN CONVICTED OF SEXUALLY ASSAULTING A 7 YEAR-OLD GIRL. SHE THREW OUT THE INDICTMENT. >> BEASLEY IS A DEMOCRATIC CANDIDATE IN NORTH CAROLINA'S U.S. SENATE RACE WILL TAKE ON REPUBLICAN TED BUDD IN NOVEMBER. THE AD MAKES 2 CLAIMS ABOUT HER THAT SHE VACATED THE DEATH SENTENCE FOR SOMEONE WHO SHOT A TEENAGER AND THAT SHE THREW OUT THE INDICTMENT OF A MAN CONVICTED OF ASSAULTING A YOUNG GIRL. THE AD IS SOMEWHAT ACCURATE. BUT LET'S BE CLEAR ABOUT SOMETHING NEITHER OF THESE CASES WAS ABOUT THE DEFENDANT'S ACTIONS AND THE DEATH SENTENCE CASE. A MAN HAD BEEN CONVICTED OF MURDERING A 17 YEAR-OLD. HE WAS INITIALLY GIVEN THE DEATH PENALTY. BUT THEN YOU SOMETHING CALLED THE RACIAL JUSTICE ACT TO GET HIS SENTENCE REDUCED TO LIFE IN PRISON. STATE LAWMAKERS THEN REPEAL THE RACIAL JUSTICE ACT AND THE STATE SUPREME COURT WAS ASKED SHOULD THE MEN BE SENT BACK TO DEATH ROW BEASLEY IN THE COURT RULED NO, THAT WOULD BE DOUBLE JEOPARDY. SO HE'LL SERVE LIFE IN PRISON. AS FOR THE CASE WITH THE YOUNG GIRL, THE MAN WHO HAD BEEN CONVICTED ARGUED TO HAVE HIS CASE THROWN OUT BECAUSE PROSECUTORS DIDN'T COMPLY WITH STATE LAW AS IT APPLIES TO IDENTIFYING HIS ACCUSER. THE INDICTMENT REFERRED ONLY TO THE GIRL AS VICTIM ONE. THE COURT RULED 42 THAT THE INDICTMENT DID NOT DISTINGUISH THE DEFENDANT ACCUSER FROM OTHER VICTIMS. BEASLEY IN THE 3 OTHER CITED THIS STATE LAW WHICH SAYS INDICTMENTS MUST HAVE SOME FORM OF IDENTIFYING INFORMATION FOR THE VICTIM. SO ALTOGETHER, THAT AD HAD SOME ACCURATE INFORMATION, BUT IT LEAVES OUT A LOT OF IMPORTANT CONTEXT AND THAT'S WHY THE TREATIES OR A GET AFTER IT. >> TO READ MORE ABOUT THOSE CASES, GO TO WRAL DOT COM. THANKS TO PAUL TRYING TO HELP US TO UNDERSTAND WHAT YOU SEE IN THESE ADS AND THEY'RE GOING TO BE PLENTY MORE AS WE APPROACH THE NOVEMBER ELECTION. BUT THERE'S A LOT MORE IN GENERAL TO TALK ABOUT. SO PLEASE E-MAIL ME AT DAN. >> AT WRAL DOT COM, NOT TRY TO RESPOND TO EVERY SINGLE E-MAIL. PLEASE BE PATIENT. I GET A TON OF THEM. SO IF YOU HAVEN'T GOTTEN A RESPONSE YET, TRUST ME. I'M WORKING ON IT. IF YOU HAVE SOMETHING ELSE TO SAY BE PERSISTENT. LIKE KARL WHO SAID, I ENJOY YOUR PROVOKING DISCUSSIONS OF CONTROVERSIAL QUESTIONS, BUT I HAVE NOT SEEN ONE PRESSING ISSUE TREATED. WHAT HAPPENED WITH KAT CAMPBELL IS VISIT TO ICELAND. WE WERE SUPPOSED TO GET DAILY REPORTS WITH PICTURES OF WATERFALLS AND VOLCANOES, ET CETERA. BUT I SAW ONLY ONE ON THE FIRST DAY OF ARRIVAL WITH A HUGE CHURCH. THEN SUDDENLY SHE WAS BACK ON THE AIR AS IF NOTHING HAD HAPPENED. NO WORD MENTION OF ICELAND, WRAL TRYING TO COVER SOMETHING UP. YES. IS A SECRET AGENT.

Excerpt from:

First amendment allows political ads to run -- even if they have misleading statements - WRAL News

The fictional character Bill Lumbergh of Office Space is pictured alongside New York Gov. Kathy Hochul

If New York Governor Kathy Hochul (D) could go ahead and read up on the First Amendment, that would be great.

During interviews with reporters in the days following Saturdays horrific mass shooting in Buffalo, New York, Hochul summarized free speech jurisprudence with a disastrous inaccuracy seriously unbecoming a sitting government official.

In the video below, Hochul can be seen in an interview with ABCs George Stephanopoulos in which she remarked that depraved ideologies of white supremacy are fermenting on social media and spreading like a virus. Hochul called on tech companies to do more to monitor and shut down dangerous individuals on social media platforms. Without distinguishing between private action (such as the kind of user-monitoring Hochul was suggesting be undertaken by private companies) and government action, Hochul ended the interview by summarizing her take on government power to regulate speech.

Ill protect the First Amendment any day of the week, Hochul pledged. But you dont protect hate speech. You dont protect incendiary speech. Youre not allowed to scream fire in a crowded theater. There are limitations on speech

Theres a lot to unpack in Hochuls statements a bit of which is correct, but most of which is dead wrong.

Lets start with some First Amendment basics. Under the First Amendment, freedom of speech is a protected right. Like other rights, however, free speech is not absolute. Certainly, government regulation of speech is to be viewed with suspicion, because there are stringent limitations within which the government is authorized to intrude on free speech.

Over the decades, an enormous amount of jurisprudence has developed that carves out specific rules for how the government (both local and national) may legally regulate speech. Some categories of speech have been deemed unprotected by the First Amendment, such as defamation and perjury. Of course, to ascertain whether a particular statement amounts to defamation or perjury (and thus loses First Amendment protection), one must engage in an independent analysis. The same is true for speech that is unprotected because it constitutes obscenity or fighting words.

When Hochul referenced the ever-misunderstood fire-in-a-theater example, she likely did so as a shorthand way of making the point that there are plenty of circumstances in which it is absolutely legal for the government to regulate and even prohibit speech. The point was accurate (though Hochuls example is woefully bad at making it).

As an aside, my Law&Crime colleague Aaron Keller discussed the theater-fire example at length in 2021 when President Joe Biden clumsily tried to make the same point in the same way that Hochul did. Keller explained:

Biden said, in essence, that the Constitution doesnt protect the right to yell fire in a crowded movie theater. Hes wrong. People can constitutionally yell fire in crowded gatherings if there is an actual fire. The often-misquoted phrase usually fails to acknowledge that key distinction.

Because Biden and Hochul left out the key falseness aspect of the quote, the meaning isnt quite correct. Some speech is protected and therefore essentially untouchable by government regulation. Other speech is fair game for government regulation. The distinction has zero to do with theaters and everything to do with danger.

Besides, as Keller pointed out, there have been broader jurisprudential shifts that have long ago rendered as obsolete the well-worn and tired fire in a crowded theater trope. The theater/fire analogy is rooted in an Oliver Wendell Holmes, Jr. line in Schenck v. U.S., a 1919 case that was mostly overturnedbyBrandenburg v. Ohio in 1969. The quote somehow stuck around long after the law attached to it did not.

What about incendiary or hate speech?

Hochul listed incendiary and hate speech as two more categories that you dont protect. Once again, she has listed two more categories, neither of which are categorically unprotected under First Amendment law.

Brandenburg v. Ohio sets out the basic analytical framework courts use to evaluate free speech claims. Under Brandenburg,speech can be prohibited if it is both (1) directed at inciting or producing imminent lawless action and (2) likely to incite or produce such action. In other words, what matters is the risk of danger. When speech is likely to create immediate lawbreaking or immediate danger, the government may indeed step in and prohibit that speech. This is why prohibitions against falsely alarming people in a crowded place in which a dangerous stampede may result would likely withstand constitutional scrutiny.

That said, however, proving that government action targeted only the kind of speech that would satisfy the Brandenburgrequirements is not a simple matter. Rarely does speech rise to the level of being likely to incite or produce imminent lawless action such that restriction of that speech can withstand a First Amendment challenge. Even when it does, the regulation in question cannot be overbroad, and must instead prohibit the unprotected speech without infringing on protected speech.

Indeed, the test is very, very strict: Brandenburg held that a speech at a Ku Klux Klan rally could not result in criminal punishment because the law which criminalized the speech didnt afford leeway for rhetoric however unpopular that didnt incite or produce imminent lawless action.

[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, the Court wrote of the KKK speech, is not the same as preparing a group for violent action and steeling it to such action. (Most of the quote actually came from an earlier case.)

Hochul used the word incendiary, perhaps meant to be a synonym for incitement. At best, the usage leads to an incomplete statement. At worst, its just wrong.

Merriam-Webster defines incendiary as tending to excite or inflame. While it is certainly possible that some incendiary speech might rise to the level of risk set out by Brandenburg, the two concepts are surely different. One could easily imagine speech that tends to excite or inflame that does not necessarily threaten immediate lawlessness. Thus, Hochuls misspeak on this point creates its own standard by throwing in a legally irrelevant term and mischaracterizing one of the very narrow circumstances in which speech is unprotected.

Hochuls use of hate speech, though, is a far worse legal sin.

Hate speech is not a legal designation with a specific definition. Rather, it is a conversational term usually meant to characterize speech that is overtly offensive, and usually refers to racist, sexist, homophobic, or anti-Semitic slurs. Many use the term hate speech as a kind of corollary to the term hate crimes (the history of which I detail at length here) a lack of precision that often leads to a misunderstanding about the legal status of hate speech.

The U.S. Supreme Court has never ruled that hate speech constitutes a new category of unprotected speech. Some hate speech may be obscene, while some may incite violence; on those bases, such speech could be denied First Amendment protection. However, deeming speech as hateful or hate speech does not independently make that speech a proper target for government action.

Take the KKK speech that was the crux of the Brandenburg test: if a piece of so-called hate speech does not produce or incite imminent lawless action, but rather stands on its own as a vile and loathsome thought in the marketplace of ideas, then it cant be prosecuted.

Often, when the First Amendment is discussed in legal circles, hate speech is used as a primary example of the kind of speech that is loathed but still legally protected. Against that backdrop, Hochuls declaration that she will protect the First Amendment any day of the week, but that you dont protect hate speech, is a truly pitiful statement on the governors understanding of her own responsibility as an executive official.

On Wednesday, Gov. Hochul held a press conference announcing an executive order to establish a unit to combat domestic terror. Hochul slammed the mainstreaming of hate speech, particularly online.

Hochul, announcing a threat assessment management program, said the dedicated domestic terror unit would develop best practices to address the homegrown rise in extremism.

Hate just breeds more hate, Hochul said. Think of all the people who saw the livestream of the Buffalo shooting.

They witnessed this in real time, she added. The suspect wanted people to see this.

That is a direct threat to New Yorkers, Hochul continued. The governor said she also made a referral to the New York Attorney Generals Office to investigate the social media platforms (see: Twitch) that broadcasted the horrific attack in Buffalo and legitimized replacement theory.

Were watching you now. We know what youre up to, Hochul said, addressing would-be domestic terrorists.

New York Attorney General Letitia James (D) issued a statement of her own Wednesday afternoon, announcing the very investigation of social media platforms that Hochul requested. Jamess office specifically mentioned Twitch, 4chan, 8chan, and Discord.

The terror attack in Buffalo has once again revealed the depths and danger of the online forums that spread and promote hate, Jamess statement said. The fact that an individual can post detailed plans to commit such an act of hate without consequence, and then stream it for the world to see is bone-chilling and unfathomable. As we continue to mourn and honor the lives that were stolen, we are taking serious action to investigate these companies for their roles in this attack. Time and time again, we have seen the real-world devastation that is borne of these dangerous and hateful platforms, and we are doing everything in our power to shine a spotlight on this alarming behavior and take action to ensure it never happens again.

[Images via YouTube/screengrab, ABC News screengrab]

This is an opinion piece. The views expressed in this article are those of just the author.

See the original post:

If Our Government Officials Understood the First Amendment That Would Be Great - Law & Crime

The defamation trial between actors and former partners Johnny Depp and Amber Heard is close to its conclusion. Both Depp and Heard have taken the stand. Right now, Heard's team is in the midst of presenting her side of the story. According to reports, Depp is expected to be called to the stand again by Heard's team this Monday.

Depp, widely known for his role in the Pirates of Caribbean franchise, is suing Heard, his ex-wife, for defamation over an opinion piece she wrote for The Washington Post and is seeking $50 million. Heard is also countersuing for $100 million.

Here's what else you should know about the trial.

Heard, 36, is a model and actress who starred in 2018's Aquaman. She was married to Depp, 58, from 2015 to 2016. The pair divorced in August 2016.

In December 2018, Heard wrote an op-ed for The Washington Post titled, "I spoke up against sexual violence -- and faced our culture's wrath. That has to change." She said in the article that she had become "a public figure representing domestic abuse," but didn't mention Depp's name.

Depp alleges Heard defamed him in the op-ed. During opening statements, Depp lawyer Benjamin Chew said Heard's article clearly refers to Depp, and that Heard's "false allegations had a significant impact on Mr. Depp's family and his ability to work in the profession he loved."

Benjamin Rottenborn, a lawyer for Heard, said that the First Amendment protects what she wrote. "The article isn't about Johnny Depp," Rottenborn said. "The article is about the social change for which she is advocating and that the First Amendment protects."

Rottenborn also said evidence in the trial will show that Heard did suffer domestic abuse at the hands of Depp, and it was physical, emotional, verbal and psychological.

Depp is faced with proving Heard knowingly made false claims. Heard has filed a countersuit against Depp, which will be decided as part of the trial. She's claiming Depp defamed her when his former lawyer referred to her allegations of abuse as a hoax.

Depp testifies.

Depp lost a defamation case that involved Heard in 2020. He had sued British tabloid The Sun over a headline calling him a "wife beater." Depp filed his current defamation suit in 2019, the year after she wrote the op-ed.

Heard just finished taking the stand this week. When asked about the first time Depp allegedly hit her, she described an instance when she'd asked Depp about what one of his tattoos said, and he'd replied "wino." "I just laughed because I thought he was joking, and he slapped me across the face," she said. Heard also testified that Depp sexually assaulted her shortly after they were married.

During his testimony earlier in the trial, Depp said that Depp he never struck Heard but that she displayed violence during their relationship. Depp alleged she threw a vodka bottle at his hand during an argument, cutting off a part of his middle finger.

Johnny Depp is set to take the stand again on Monday.

Both teams are expected to deliver closing arguments on May 27. After that the jury will deliberate on its decision.

According to sources, Elon Musk is no longer expected to take the stand.

Read more here:

The Johnny Depp and Amber Heard Defamation Trial: Everything to Know - CNET