The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From yesterday's New York Times article (Manny Fernandez & Laurie Goodstein):
[After the shooting, Alia Salem, the head of Council on Islamic-American Relations Dallas/Fort Worth chapter] took calls from those she views as allies—other Muslim advocates, a Methodist minister, an organizer for the American Civil Liberties Union—to come up with a response that would walk a fine line: clearly condemning the extremists behind the attack, while also calling to account what they see as hatred decked out in free speech finery.
The discussion we have to have is: When does free speech become hate speech, and when does hate speech become incitement to violence?
"Incitement," of course, isn't just a lay term (like offensiveness or blasphemy)—it's well-known as the name of a First Amendment exception, a category of speech that can be restricted. What's less well-known is the precise definition of incitement: advocacy intended to, and likely to, persuade people to engage in imminent illegal conduct. "Imminent" here means that the speaker is trying to persuade people to act in the coming hours (think the classic example of someone speaking to a mob assembled in front of a particular building), not at some time in the indefinite future.
Generally condemning Islam (or condemning capitalism or condemning the police or condemning evangelical Christians), even in harsh terms, doesn't constitute incitement. Even if people think the speaker is trying to foment violence, there's no advocacy of imminent illegal conduct. The Garland, Tex., Mohammed cartoon contest is certainly not punishable incitement, just as publishing The Communist Manifesto (or for that matter speaking in praise of jihad or harshly condemning blasphemers or apostates) is not punishable incitement. Nor does speech become punishable incitement because there is some known risk that thugs will try to violently silence it.
This is a result of a discussion, a discussion that is almost 100 years old; it began with the Supreme Court's World-War-I-era cases, which allowed restrictions of speech that had a supposedly "bad tendency" (e.g., because it encouraged people not to comply with the draft, or because it encouraged violent revolution). Over the following decades, the Court gradually took a more speech-protective approach. In Brandenburg v. Ohio (1969), it announced the intent-imminence-likelihood test described in the preceding paragraph. In Hess v. Indiana (1973), the Court made clear that "imminence" is a demanding standard (again, the one described above). And since then, the Court and lower courts have kept the incitement exception very narrow, and have resisted attempts to create a "hate speech" exception.
So it seems to me that Ms. Salem isn't just trying to have a conversation about manners or ethics. She's urging a conversation about law, and about how the incitement exception can be broadened, to allow suppression of criticisms of Islam that she sees as "hate speech" and "incitement" in a much broader sense than First Amendment law now allows. I for one am not terribly inclined to have a conversation about restraining our constitutional rights to express our ideas—including ideas about which ideologies (religious or otherwise) are dangerous. But we should be alert that others do seem to be calling for such conversations.