Technology and intellectual law and policy require a working knowledge of the free-speech and associational rights protected by the First Amendment of the US Constitution. The First Amendment is crucial to content creators and creative industries; it limits the extent to which the government can deny or cancel trademarks, and on the internet, it severely limits the liabilities of both platform operators and content publishers. Consequently, you rarely see content or technology companies call for new, vague exceptions to current First Amendment rights.
Nevertheless, recently, in How to stop racism from winning on campus (0), the Washington Post’s editorial board argued that to protect the alleged racial “sensitivities” of young adults, government officials should have “crystal clear” authority to censor and punish any “signs, symbols[,] or speech” that they deem “racist.” Washington Post blogger, law professor Eugene Volokh, replied (1), concluding that this was a stunningly “awful idea.”
It is. As Volokh noted, this idea is clearly unconstitutional under modern judicial interpretations of the First Amendment. Worse yet, that is no accident. Persons who favor a “hate speech” exception to First Amendment protections usually claim that whatever they deem to be hate speech should be unlawful because they believe it to be a form of violence. Such an exception is clearly unconstitutional because, nearly 100 years ago, we enacted statutes that punished speech deemed to advocate political violence. The ugly result was the period in the 1950s often called “McCarthyism” or the “McCarthy era.” That is not a result that we should repeat.
During this period, legitimate concerns about the threat of communism and the USSR went beyond efforts to identify Soviet spies in the US government. Multiple branches of the federal government also tried to expose even private persons who supported some version of Marxism because, it was feared, they might destroy US representative democracy by convincing others to violently replace it with a socialist dictatorship.
The statutes that gave this witch-hunt aspect of McCarthyism its teeth were often called “criminal syndicalism” statutes. They made it a crime to advocate using violence to achieve political change. While framed in general terms, those statutes were mostly intended to make it illegal to advocate the adoption of Marxism, communism, and most forms of socialism — all of which preached the need for a violent workers revolution — in the US. Criminal syndicalism statutes could thus criminalize not only pure speech advocating Marxism, but also being a member of a party that advocated Marxism.
Of course, criminal syndicalism statutes could also be used to criminalize speech allegedly advocating even the possibility of using violence to affect the outcome of political debates about race and racism. For example, when the leader of a Ku Klux Klan chapter in Cincinnati gave a speech in which he refused to rule out the possible use of violence at some point in the future, he was prosecuted and convicted of violating Ohio’s syndicalism statute.
In Brandenburg v. Ohio (2) (1969), the US Supreme Court reversed his conviction and its own prior decision sustaining the constitutionality of another state syndicalism statute. It concluded that speech advocating violence could be prohibited, but only when it was directed at inciting imminent violence and likely to do so. Brandenburg thus does not protect either imminent incitement or particularized true threats to particular individuals, but it otherwise broadly protects even speech that advocates literal violence.
Brandenburg remains an important case precisely because it required us to defeat even pernicious, dangerous, and potentially violent ideologies with better ones — not with coercive force. It is not a decision that the editorial boards of newspapers, universities, or student “social-justice activists” should lightly seek to overturn.