Category Archives: First Amendment

The Becket Fund for Religious Liberty has sent a brief to the Supreme Court in the travel-ban casebut unlike most of the many briefs in that case, it takes no position on whether the Court should uphold or nullify the ban. Its goal, rather, is to make sure that the court refrains from distorting the meaning of the Constitutions prohibition on religious establishments in the process of deciding the case.

Beckets argument is that the Court should decide the case under the free-exercise clause rather than the no-establishment clause of the First Amendment. If the ban unconstitutionally targets Muslims, that is, it impinges on their right to practice their religion. It doesnt establish Christianity (or non-Islam) as the state religion.

It seems like a pretty obvious point, but since some courts have gotten the issue wrong Becket spells it out in some detail. The executive order doesnt create an establishment because it does not place the state in control of any churchs doctrine or personnel, doesnt compel attendance of any church, doesnt provide financial support of any kind to any church, and doesnt put any church in charge of important public functions.

The Becket lawyers are not just concerned that the Court might apply the establishment clause to the case; theyre also concerned that they will apply the clause using the Lemon test. Under that test, developed in a 1971 case striking down state aid to religious schools, judges must decide whether a governmental policy has a legitimate secular purpose and whether it involves excessive government entanglement with religionboth, conservative lawyers have usually contended, highly subjective judgments. The Court has moved away from Lemon but lower courts considering the case have applied it.

As long ago as 1993, Justice Antonin Scalia likened the Lemon test to some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried. Becket wants the ghoul killed and buried for good. But theres a chance that the passions this case has called forth will bring it back once more.

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Travel Ban Case Could Harm First Amendment Law | National Review - National Review

His belief that the Sandy Hook elementary school shooting of 2012 was a hoax perpetrated by false flag government agents for the purpose of inhibiting gun ownership in the United States goes beyond distaste. This is a man who has looked parents in the eye and declared their dead children to have never existed.

Free speech is a freedom we enjoy despite the right's continued attacks against the free press (see Republican attempts to prevent congressional interviews during Jeff Sessions' testimony to Congress earlier this week) and to portray Alex Jones as a victim in this context is outright repugnant.

Let us not forget that it was Alex Jones's right-wing website that pushed the "Pizzagate" conspiracy that led to a member of the alt-right threatening the institution with a firearm. As LaVenuta doubtless knows, speech considered to be inciting violence is not protected under the First Amendment.

This goes beyond simply portraying Alex Jones as a "bad guy." His website affords him his First Amendment rights and to give him a platform on a nationwide network is irresponsible and dangerous. The right's consistent self-victimization is hypocritical to the point of being ludicrous, and to push this narrative as an attack on the First Amendment is nothing short of outrageous.

Roth lives in Fargo.

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Letter: First Amendment rights defense of Alex Jones is outrageous - INFORUM

Patch.com

Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case Patch.com Whether involving a minor nick, as defense attorneys argue, or the surgical cuts alleged by the government, legal scholars say the defense may take the case into new First Amendment territory. Courts have consistently ruled again Jehovah's Witness and ... Female Genital Mutilation As a First Amendment Right? 5 Lawyers ...Glamour all 19 news articles »

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Female Genital Mutilation: 4th Person Charged In Historic 1st Amendment Case - Patch.com

Last week, I blogged about whether the First Amendment restricts President Trumps ability to block users from his @RealDonaldTrump Twitter account. The Knight First Amendment Institute said yes. I said probably not, because I thought Trumps actions with regard to @RealDonaldTrump an account that (unlike @POTUS) precedes the Trump presidency and that conveys Trumps individual voice would likely be viewed as not government action but rather his own individual decisions and thus not bound by the First Amendment. I said (and still think) that its a close call, but I noted that some cases had suggested that even speech on government matters by high government officials may be seen as their own speech, rather than the governments, and I thought this was so here.

Jameel Jaffer from the Knight Institute was kind enough to respond. Ill quote his entire response and then offer a few thoughts of my own. (Amanda Shanor (Take Care) and Robert Loeb (Lawfare) have posted analyses that are similar to the Knight Institutes, though more detailed and worth reading.)

First, Jaffers thought:

Does the First Amendment Restrict Trump on Twitter?

The First Amendment binds President Trump when he acts in his official capacity. How do we know, though, when hes acting in his official capacity, rather than his personal one?

Earlier this week, the Knight Institute sent President Trump a letter on behalf of people whom President Trump had blocked from his most-followed Twitter account, @realDonaldTrump. We argued that the account constitutes a designated public forum under the First Amendment and that consequently President Trump is barred from blocking people from it simply because they ridiculed or disagreed with him. But why does the First Amendment apply at all, one might ask, to @realDonaldTrump, an account that Trump opened long before he became president and that could be understood as the personal counterpart to @POTUS, the official presidential account?

Professor Volokh argues (tentatively) that @realDonaldTrump is the megaphone of Trump-the-man, not Trumpthe-president. Government officials, he points out, can operate in two different capacities on behalf of the government and expressing their own views. He writes that Trump opened @realDonaldTrump before he became president, that the account is understood as expressing [Trumps] own views apparently in his own words and with his own typos, and that the account does not express the institutional position[s] of the executive branch. He distinguishes @realDonaldTrump from @POTUS, which has a handle more focused on the presidents governmental role. He states that the question falls near a borderline that hasnt been mapped in detail, but he concludes (again, tentatively) that @realDonaldTrump is not a public forum.

Its of course true that public officials sometimes act in their personal capacities. A president probably has less latitude to act in a personal capacity than, say, a city councilor does, but even a presidents statements will sometimes be attributable to the president-as-citizen rather than the president-as-president. If President Trump established a private Facebook page to communicate with business acquaintances about golf, no one would contend that the First Amendment barred him from excluding people from the group based on their views.

But wherever the line between personal accounts and officials ones, @realDonaldTrump must be on the official side of it. Here are the facts, as I understand them:

If these are the facts, as I think they are, I dont think @realDonaldTrump can fairly be characterized as a project of Trump-the-man, even if it began as his project. Whatever the account once was, its now an important channel through which Trump-the-president communicates with Americans about his presidency. Its not a personal account; its an official one and consequently its an account to which the First Amendment applies.

Heres my thinking:

1. That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesnt make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that its fine for government officials to express religious views in their speeches here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

When I put up posts, or moderate comments, Im not acting on behalf of the state of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such service to the public); likewise for Trump. To be sure, my powers stemming from my government job are small, and Trumps powers are vast. But the principle strikes me as quite similar.

For whatever its worth, the only case that has closely dealt with this, Davison v. Plowman, took the view that a government official may be speaking as a citizen and not as the government, even when he is mak[ing] public statements though social media to constituents though I should acknowledge that this is just a federal trial court case and not a binding precedent.

2. Sean Spicers statement that @RealDonaldTrump tweets are official statements doesnt count for much here, I think I dont think that a press secretary can bind the president, the executive branch or the judiciary on a legal question such as this.

3. That courts have given the presidents tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuits decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate that certainly couldnt have been government speech. The theory behind the 4th Circuits use of the tweet is that Trumps motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didnt care whether the tweet was an official statement or just his views in 2015 as a private citizen.

4. To the extent that the presidents aides regularly write tweets in his name (not certain, and the cited source is from the time when the president was just a candidate), the matter might be different, though that is not entirely clear.

* * *

While Im talking about this, let me briefly note one other post about this, from Noah Feldman (Bloomberg). Feldman focuses on the fact that Twitter is a privately owned platform and concludes that its highly likely that there is no state action when blocking the followers takes place on such a private platform.

I dont think thats quite the right inquiry, though: If, for instance, a government agency rents space in a privately owned building to hold a public meeting and then lets citizens speak during a public comment portion of the meeting, it has created a limited public forum in which it cant discriminate based on viewpoint.

The same is true if a government agency (and not just a single politician) runs a Facebook page and allows citizens to comment there that would indeed be a limited public forum, because its government-run even if it uses private property. (See the Davison cases cited in my original post.) Likewise with Twitter, the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running the Twitter feed, not whether Twitter is a state actor.

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More on the First Amendment and @RealDonaldTrump - The ... - Washington Post

If nothing else, President Trump is putting it in stark, clear terms for us. He is out to destroy the independent press in the United States and replace it with some sort of information system that is subservient to him personally and his version of reality.

Trump continued his deliberate, ongoing assault on the free press Tuesday in yet another early-morning tweet:The Fake News Media has never been so wrong or so dirty. Purposely incorrect stories and phony sources to meet their agenda of hate. Sad!

This nonstop campaign to convince people that the independent press is deliberately making up news puts things to a very simple test. Either:

His assertions that a substantial amount (or the entirety?) of normal, mainstream coverage is somehow deliberately fake is not the utterance of a healthy person. It does not represent a connection to reality and/or it represents an attempt to substitute propaganda for information. He cant make it any plainer. Dont scoff. There is apparently already an audience and appetite for Trumps version of events, whatever that version is on any given day. And Trump is using the presidency of the United States to undermine whats left of a fact-based reality.

Dont think this matters? Then enjoy becoming the subject in the famous Asch Experiment. And heres another test for you: Have you tried recently having a productive conversation with a Trump supporter who is operating off a completely different fact set? How did that go?

When the propaganda model replaces the free press model, you can either go along, or it is you who will be judged insane.

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President Trump hates the First Amendment. He thinks it's sad. - Washington Post

Yesterday, Indian River County School District Superintendent Dr. Mark Rendell reversed Vero Beach High Schools decision to disqualify PLF client, J.P. Krause, from the race for senior class president. After careful review of all the circumstances surrounding the Vero Beach high School Student Government Association Senior Class President election, I have decided to overturn the principals decisions regarding disqualifying candidates from the election, and will accept the original election results, the Superintendent said Tuesday afternoon.

While this is a win for our clientand the voters of Vero Beach High Schoolit doesnt go far enough. JP is entitled to a full vindication of his First Amendment rights. He still has a permanent mark on his disciplinary recordthe allegation that he harassed his opponent. The school district has refused so far to remove it from his record, claiming that this is an issue that is separate from his speech. How the district has come to this result though, is puzzling.

JPs speech in classand his subsequent punishment are directly related. It should be clear to any observer that JPs speech was political satire-speech that is protected by the First Amendment. The First Amendment wasnt designed to protect feelings, but to prevent the government from censoring views that it disagrees with. Thats just what happened here. The Districts harassment policy has been used to punish JP for his speecha speech that the school disagreed with. While under certain circumstances schools have the right to censor student speech, thats not the case here. Courts have ruled that school policies that go too far to censor speech are unconstitutional.

The policys broad ban on verbal conduct is unconstitutional, both on its face and as applied here. We know it is unconstitutional, because a U.S. Supreme Court justice has said the same about a similar school policy. In Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200 (3d Cir. 2001), the U.S. Third Circuit Court of Appeals, in an opinion written by then Judge, now Justice Samuel Alito, struck down a school districts harassment policy as overbroad, holding that even speech that is defined as harassing may enjoy First Amendment protection.

In Saxe, Judge Alito wrote that the schools harassment policy improperly swept in those simple acts of teasing and name-calling that had previously been held to be protected by the First Amendment. The policys language in that case barred speech that has the purpose or effect of interfering with educational performance or creating a hostile environment. It ignored the constitutional requirement that a school must reasonably believe that speech will cause actual material disruption before prohibiting it. Judge Alito explained that even if the speech created a hostile environment that intrudes upon . . . the rights of other students, it is not enough that the speech is merely offensive to some listener, because there is no categorical harassment exception to the First Amendments Free Speech Clause.

The schools harassment policylike the one at issue herehad no threshold requirement of pervasiveness or severity, and therefore it could cover any speech about someone the content of which could offend someone. This could bar core political and religious speech (like J.P.s political speech here). Provided such speech does not pose a realistic threat of substantial disruption, the Third Circuit held, it is within a students First Amendment rights.

Likewise here, the school has used this harassment policy for a problem that doesnt exist. Much like a square peg doesnt fit in a round hole, the arbitrary use of a school district harassment policy to punish a student for constitutionally protected speech is wrong, misguided, and sends a message to other students that their speech might be censored as well. This creates a chilling effect on campus, stifling student speech. Students should be free to learn and discuss ideas, especially ideas of public importance, absent fear of school censorship. The punishment of JPs speech has illustrated that the school is not committed to training its students to meet the challengesof adulthood and has sent a message to other students that their speech might be arbitrarily censored too.

The loss of First Amendment Freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Elrod v. Burns, 427 U.S. 347, 373 (1976). In other words, it doesnt matter that the school district reinstated JP. It still gave him detention and wrongly left the charge on his record that he harassed another student. He didnt. Accordingly, the threat that it will punish him in the future for similar speech is still there. Until he is ensured that he wont be punished for political satire, his speech rights are being harmed irreparably, which is why PLF wont stop until JPs rights are fully restored.

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Despite reversal, Vero Beach High School still in violation of the First Amendment - Pacific Legal Foundation (PLF) (press release) (blog)

BEAVER -- When Beaver Area School District administrators instructed a student to remove elements of Christian prayer from her high school commencement address, they were just trying to comply with federal law.

But the student and her family didnt see it that way.

Graduating senior Moriah Bridges had structured her graduation remarks as a prayer, intended to mesh well wishes for her classmates with her Christian faith.

Per district policy, Beavers high school principal and superintendent both reviewed Bridges remarks days before the ceremony. They asked the senior to revise her speech after the districts solicitor advised that allowing a student to lead prayer during commencement violated the U.S. Constitution's Establishment Clause, which forbids the government from promoting a specific religion.

Bridges alleges the school district violated her First Amendment rights and has enlisted First Liberty Institute, a Texas-based religious freedom advocacy group, to urge the district to reconsider its stance.

The controversy has generated national attention. As of Wednesday afternoon, the story had been blasted across both localtelevisionoutlets and Fox News.

Bridges and her mother contacted First Liberty Institute after the ceremony to ask about their rights and because they were scared and worried about recurring situations during subsequent graduation ceremonies, First Liberty attorney Jeremy Dys said.

Dys, who disagrees with the school districts interpretation of the law, sent the district a letter on June 13 asserting that Bridges religious remarks do not violate the Establishment Clause because they represent her own private speech, and not the districts views.

The letter claims the district committed viewpoint discrimination and requests that the district admit wrongdoing and meet with First Liberty attorneys to establish a policy that will prevent students religious freedom from being violated again.

The organization had not received any response as of Wednesday afternoon, Dys said.

Superintendent Carrie Rowe defended the decision in a press release posted on the districts website.

Beavers solicitor counseled Rowe that federal law prohibits student-led prayer during graduation ceremonies, according to the release. The solicitor backed her reasoning with a 2000 Supreme Court ruling involving Sante Fe Independent School District, which upheld that "school officials may not permit a teacher, faculty member, member of the clergy, or student to deliver any sort of prayer, invocation, or benediction at public school-sponsored events, including graduations."

Students who speak at graduation, including the valedictorian and class president, know that the District will review their remarks in advance, and the District assumes responsibility for the content, according to Rowes release. In Moriahs case, the District could not approve a speech written as a prayer, but did approve a second version that she submitted.

Although I can understand why this restriction might upset members of the community, I cannot choose which laws to follow, Rowes release said.

In situations like these, whether a student offering prayer during a graduation address violates the Constitution hinges on whether the school district reviews the speech, said Charles Haynes, vice president of the Newseum Institute. Haynes also serves as founding director of the Religious Freedom Center and is a senior scholar at the First Amendment Center.

Generally, a school district is not considered responsible for a students graduation remarks as long as the student crafts her thoughts on her own without any district input or oversight.

When the school reviews the address, the responsibility shifts, Haynes said. If school officials approved the religious speech in the students graduation remarks, the school then becomes responsible for promoting religious speech and violating the First Amendment, he said.

Current laws forbid public schools from allowing prayer at graduation -- student-led or otherwise, Haynes said. Even if the school includes a disclaimer specifying that the students views are her own, the school can still be considered legally responsible for speech it has reviewed.

Theres no ambiguity in the law, he said.

If public school officials violate the First Amendment, they make the district vulnerable to lawsuits, Haynes said. Beyond potentially expensive litigation, the overarching concern is the districts fundamental responsibility to protect the freedom of conscience for its students, he said.

That is the bigger concern. The school is there to protect freedom of conscience and religious liberty for everybody, Haynes said, whether the student is Christian, a nonbeliever, Jewish or Muslim.

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Beaver Area graduate alleges First Amendment violation | Education ... - Timesonline.com

Honors student J.P. Krause won the election for senior class president at Vero Beach High School in Vero Beach, Fla. And then, all of a sudden, his victory was stripped from him.

Summarily, the high schools administrators stripped him of his new position, and, to add insult to injury, gave him detention. Why? Because Krause delivered a satirical campaign speech that channeled Donald Trumps presidential campaign rhetoric and, in jest, claimed his opponent was a Communist. It was harassment, the principal concluded.

After Krauses classmates chanted speech, speech, he gave an impromptu speech that kept his fellow classmates laughing for well over a minute. I am for freedom, equality, and liberty, he said. His opponent? Well, she wants to advance Communist ideals, he smirked. She will raise taxes to 80 percent!

Krause also suggested in jest that his opponent supports their rivals at the nearby high school, whereas he would build a wall between the two schools and make their rival pay for it.

No one thought Krause was serious. The room, full of honors students in U.S. History, seemed to be well aware of the parallels Krause was making between his campaign speech and Donald Trumps presidential campaign speeches. The teacher allowed the off-the-cuff speech to continue, and there wasnt any reaction by students inside the classroom but laughter.

Nevertheless, the speech not only disqualified Krause from taking up the reins as class president, it also added harassment to his school record. The administration took my speech out of context and said I was harassing a student, Krause tells National Review.

It was a joke the whole way through.

Pacific Legal Foundation, a conservative public-interest law firm, is representing Krause in an attempt to remove the harassment claims from his school record. It also seeks to reinstate Krause as class president. It was pure political speech and obviously humorous, explains Mark Miller, Krauses attorney at Pacific Legal Foundation, to National Review. Its clearly protected in First Amendment speech.

In a letter sent to Mark Rendell, the superintendent of the school district, Miller argued that if a student gives a speech that is lewd, vulgar, or profane, then the school can sanction him.

But that is not remotely the case here, Miller retorted. Satirically claiming that an opponent in a class election wants to raise taxes, advance Communism, and implement a dress code is certainly not lewd, vulgar, or profane its a joke.

Because the high school applied the same speech code that it would use to punish students who say lewd, vulgar, or profane comments to that of a satirical speech, Miller contests that it is violating the First Amendment. J.P.s speech in no way singled out his fellow student candidate for her appearance, abilities, gender, race, creed, religious beliefs, or sexual orientation, Miller wrote. Nor was it deeply offensive.

Schools such as Vero Beach High School are sending the message to students that only some political statements are tolerable. Thats exactly the wrong message to tell a young man like J.P, Miller says.

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Violating the First Amendment, High School Punishes Student for Satirical Campaign Speech - National Review

Lawyers from Columbia Universitys Knight First Amendment Institute sent a letter last weekarguing that President Trumps blocking users on Twitter runs afoul of the First Amendment.

The presidents account recently blocked the two Twitter users being represented after they posted critical tweets in response to a couple of the presidents tweets.

Their lawyers argument is that the presidents blocking these users from seeing or responding to his tweets on Twitter impinges on their free-speech rights under the First Amendment; the idea is that Trump, in his capacity as a state actor, has violated the Constitution by blocking access to information in what should be considered a public forum.

Yet they fail to consider that (1) these citizens have other means of accessing his tweets, and (2) Trumps account (@real DonaldTrump) is hosted by a private company, which is free to set its own policies for how its users interact.

To the first point, the two people that were blocked can still access these tweets not only from the thousands of retweets they receive from countless other accounts or news publications, but by simply creating another account from which to follow Trump.

Secondly, Trumps Twitter account is not federally owned or operated and therefore should not be treated as a government-created forum obliged to provide access to all comers.

It should be obvious that, though blocking people on Twitter may seem beneath the presidents office or pointless considering the thousands of other tweets that are critical of him from accounts he didnt bother to block, it isnt unconstitutional. Whether a judge might hold otherwise in the current climate is less clear.

Excerpt from:
Is It Unconstitutional for Trump to Block Twitter Users? - National Review

Free speech and its limitations are on Americans' minds. In the past year we've seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the president's severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isn't inherently bad. It's good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

Here are some of the most popular misleading slogans:

"Not all speech is protected. There are limits to free speech."

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the First Amendment "well-defined and narrowly limited." They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. It's a non sequitur.

Imagine you're bitten by a snake on a hike, and you want to know rather urgently whether the snake is venomous. You describe the snake to your doctor. "Well, not all snakes are venomous," your doctor responds. Not very helpful, is it?

"You can't shout 'fire' in a crowded theater."

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Schenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court often led by Holmes himself retreated from this terrible precedent, eventually ruling that speech can't be punished as "incitement" unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes' usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to First Amendment protections. As I said before, that's not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the First Amendment.

"Hate speech is not free speech."

This popular saying reflects our contempt for bigotry, but it's not a correct statement of law. There is no general First Amendment exception allowing the government to punish "hate speech" that denigrates people based on their identity. Things we call "hate speech" might occasionally fall into an existing First Amendment exception: A racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But "hate speech," like other ugly types of speech we despise, is broadly protected.

"We must balance free speech and other interests."

Censorship advocates often tell us we need to balance the freedom to speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts don't decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific First Amendment exception. As the Supreme Court recently put it, "the First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs."

"'Fighting words' are not protected under the First Amendment."

Years ago the Supreme Court recognized a very narrow First Amendment exception for "fighting words." If the exception still survives, it's limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesn't apply broadly to offensive speech, even though it's often invoked to justify censoring such speech.

"Maybe this speech is protected now, but the law is always changing."

The Supreme Court's approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving toward more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals have yielded solid 8-to-1 majorities in favor of protecting speech. There's no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, I'm happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.

Ken White is a First Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles. He wrote this for the Los Angeles Times.

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Ken White: Actually, hate speech is protected by First Amendment ... - Allentown Morning Call