Protected and Unprotected Speech

Free SpeechJudicial
Written By John Buxton

Segment # 170

Watching the escalating violence on our campuses begs the question freedom of speech or Illegal threats.  It’s complicated, and, like the border, any incentive to obey the law is severely limited by a lack of enforcement of the actual laws on the books. It is both absurd and ironic that in some parts of the United States, you have more serious penalties for using the wrong pronoun than screaming “Kill all the Jews”. I  also recall FBI director Wray admitting that Jan 6th involved more resources than any other investigation in the history of the bureau. Where is the FBI now?

 The January 6th investigation is the largest and most complex criminal investigation ever undertaken by the FBI. As of July 2022, the FBI had made about 850 arrests related to the Capitol attack, but this is still only a minor fraction of the more than 2,500 people who entered the building and the hundreds more who committed crimes.

https://www.nbcnews.com/politics/justice-department/jan-6-probe-expands-officials-worry-doj-resources-are-breaking-point-rcna40208

There are a few key points regarding laws against misgendering individuals:

 

Laws prohibiting misgendering vary by state. Some states like California and New York have laws that can fine businesses for willfully misgendering employees1. 

However, a California court recently ruled that misgendering patients is protected free speech under the First Amendment, partially overturning a state law2.

At the federal level, Title IX, which prohibits sex-based discrimination in education, has been interpreted by some courts to cover gender identity discrimination and misgendering1. Misgendering can also be considered workplace discrimination under federal law1.

Many large corporations and educational institutions have implemented their own policies prohibiting misgendering to create more inclusive environments1. 

However, some argue that forcing people to use certain pronouns violates their free speech rights12.

Intentionally and persistently misgendering someone, especially in a workplace setting, can potentially create a hostile environment and be considered discriminatory harassment under some state and federal laws13. 

But the line between ignorance and discrimination is not always clear1.

Overall, the legal landscape around misgendering is still evolving. While respect and using a person's correct pronouns is considered basic courtesy, whether it can be legally mandated is a complex and often controversial issue balancing anti-discrimination efforts with free speech rights124.

Protests

First, in many locations permits are required. Understand this is local, not federal, and laws vary.

Here are the key requirements for obtaining permits for protests across the United States:

Many localities require a permit to hold a parade or march, especially if it will obstruct traffic or require street closures4. 

Check with your local government about their specific permit requirements.

Courts have approved permit application deadlines of a few days before the event, but longer deadlines like 10 days may be unconstitutional as they burden free speech rights5.

Permit fees are allowed but must only cover the administrative costs of processing the application, and not be used to discourage protests5.

Permit requirements and fees must be viewpoint-neutral and not discriminate against particular groups or controversial opinions.

Permits cannot be denied based on the controversial nature of the views being expressed or because the protest is critical of the government14

There must be concrete, narrow standards for denying a permit. Even without a permit, you can march on sidewalks and streets as long as you don't obstruct traffic14. 

Police may ask you to move to the side to let others pass. Private property owners can set rules for speech on their property, but adjoining public sidewalks and streets may provide an alternate protest venue5.

So in summary, check local rules, apply a few days in advance, expect reasonable fees, and you can likely protest without a permit in many public spaces. But permit requirements must be content-neutral and not unduly burden free speech rights. Permit rules vary from state to state.

Speech Protection

 

Anti-Semitic chants are generally protected under freedom of speech unless they rise to the level of unprotected speech such as incitement, true threats, or harassment135.

The First Amendment protects even offensive, racist, and anti-Semitic speech5. Advocacy of violence or genocide remains protected unless it is intended to cause imminent lawless action and likely to succeed in doing so1. 

Mere abstract teaching of the moral necessity for violence is not the same as preparing a group for violent action1.

For speech to constitute unprotected harassment, it must be targeted, unwelcome, and "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit"1. 

An isolated chant or protest, even if anti-Semitic, does not meet this high bar3.

However, if anti-Semitic chants are directed at specific individuals in a threatening manner during a violent protest, they may cross the line into unprotected true threats1. 

 Chants that follow and harass Jewish students could potentially rise to the level of harassment but would need to be extremely severe and pervasive13.

 

In summary, while anti-Semitic chants are highly offensive, they remain protected speech under the First Amendment unless they meet the strict legal standards for unprotected categories like incitement, true threats, or discriminatory harassment in an educational setting. Punishing such speech would open the door to censorship of other controversial political expression13.

Unprotected Speech

 

Antisemitic chants that are not protected by the First Amendment's free speech protections could potentially face penalties if they constitute unprotected speech such as:


True threats - statements that communicate to another person or group a serious expression of an intent to commit an act of unlawful violence12

Incitement to imminent lawless action - speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action14

Discriminatory harassment - a pattern of unwanted behavior targeted at specific individuals that is severe, pervasive, and objectively offensive enough to effectively bar the victim's access to an educational opportunity or benefit13

For example, if students repeatedly gathered outside a Jewish student's dorm room and loudly called for Israel to be wiped off the map, that would almost certainly constitute unprotected harassment under the Supreme Court's standard1.

However, the bar for unprotected speech is high - merely offensive or hurtful speech is generally protected34.

Ultimately, whether antisemitic chants cross the line into unprotected speech depends heavily on the specific context and circumstances in which they are uttered12. 

Advocacy of genocide or violence remains protected speech unless it meets one of the narrow exceptions in the particular situation1.

Penalties

 

There are no direct federal criminal penalties for speech that falls outside the protections of the First Amendment.

However, unprotected speech can lead to civil liability in certain cases:

Defamation (libel or slander) can result in a civil lawsuit for damages if the speech causes injury to someone's reputation24.

Fraud and perjury are punishable as crimes, but the punishment is for the fraudulent or false statement itself, not the speech1.

Obscenity and child pornography are punishable as crimes, with penalties including fines and imprisonment4.

True threats of violence are not protected and can be punished criminally3.

Speech that incites imminent lawless action can be restricted if it is likely to produce such action45.

Fighting words that are likely to provoke a violent reaction are not protected4.

 

So in summary, while the government cannot directly criminalize speech based on its content, unprotected speech can lead to civil liability for defamation or obscenity, or criminal charges for crimes like fraud, perjury, threats, incitement, or child pornography. The penalties would be those applicable to the underlying crime or civil cause of action.

Federal Penalties

 

Federal law imposes severe penalties for inciting violence and making threats against government officials or the public:

Inciting a riot under 18 U.S.C. § 2101 is a felony punishable by up to 5 years in prison. This includes acts of "organizing, promoting, encouraging, participating in a riot" and urging or instigating others to riot3.

 Inciting rebellion or insurrection against the U.S. government under 18 U.S.C. § 2383 is a felony punishable by up to 10 years in prison1.

Threatening the President of the United States under 18 U.S.C. § 871 is a felony punishable by up to 5 years imprisonment2.

Threatening other federal officials is a Class D or C felony, usually carrying maximum penalties of 5 or 10 years under statutes like 18 U.S.C. § 875 and 18 U.S.C. § 8762.

Threatening government officials' family members is also a federal crime2.

Sending threatening communications containing white powder, like anthrax, is an aggravating factor that can lead to longer sentences2.

The U.S. Sentencing Guidelines consider factors like intent to carry out the threat, disruption to government functions, and the possibility of inciting others to violence in determining the recommended penalty2.

So in summary, inciting violence and making serious threats against government officials or the public can result in lengthy federal prison sentences of up to 10 years or more, depending on the specific circumstances and statutes involved. The penalties are severe due to the grave risks posed by such conduct.

John Buxton https://yourtruthmaynotbemine.com
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