A third category of exception is that of true threats. If a speaker threatens illegal violence, that speech is not protected. But as the Court stated in Virginia v. Black, the speaker, for his threat to be a true threat, must intend to threaten. It is not enough that someone feel threatened by the speech if there is no such intent.
Some expressions of hate speech as Waldron defines it might function as fighting words when uttered face to face; some might stir an uncontrollable audience to violence; and some might be uttered with the intent to threaten violence. Most will not fall into any of these three categories.
The final category of speech that can lead to violence, and for that reason is excepted from freedom of speech, is advocacy of violence. Many of the early freedom-of-speech cases dealt with advocacy of illegal acts. The Court originally adopted the “clear and present danger” test for determining when advocacy could be punished without falling foul of freedom of speech. The Court tweaked that test substantially in the 1950s to deal with advocacy of revolution by the Communist Party. Finally, in 1969, in the case of Brandenburg v. Ohio, the Court settled on a formulation of the test that forbade punishment for advocacy of illegal acts unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The test raises many questions, such as when lawless action is “imminent,” and how likely “likely to incite” has to be. The most pertinent question about this test is whether it requires an intent to incite. The lower courts and most commentators have read “directed to” as an intent requirement, even though the fighting-words and hostile-audience exceptions do not require that the speaker intend to incite violence. In 2010, however, the Court held, in Holder v. Humanitarian Law Project, that giving legal advice for the peaceful speech activities of a terrorist organization can be prohibited as a form of material aid to terrorism, even though those giving the advice do not intend to promote terrorist acts. That holding may be evidence that the Court is moving away from a requirement that one intend to produce violence and toward a requirement that one merely know that one’s speech is likely to produce it.
If that is indeed what the Court is doing, is it a welcome doctrinal development? On the plus side, such a change would align the advocacy doctrine with the fighting-words and hostile-audience doctrines. Mere knowledge that one’s expression is likely to provoke a violent reaction would be sufficient for excepting that expression from freedom-of-speech protection. The Court might even change the exception for threats to square it with these other doctrines by eliminating the “intent to threaten” requirement in favor of a “likely to produce fear” requirement. Moreover, beyond doctrinal consistency, such changes would focus on the real harms of the expressions: the likelihood of violence and intimidation.
There is a downside, however, and it is huge. For the more an audience is prone to react violently to expression it does not like, the more will speakers have to desist from speech or from other kinds of expression. Consequently, Muslims, by reacting violently, will be able to silence criticism. They will have a “heckler’s veto” over expression they dislike. Only peaceful groups will be subject to being mocked. It will, of course, sometimes be prudent to refrain from expression that might stir Muslims to violence. Yale University Press, in publishing a book about the Danish-cartoons controversy, declined to republish the cartoons, a decision that it deemed prudent but critics labeled cowardly. But refusing to exercise a right is one thing, whereas not having that right is a quite different matter. Muzzling speakers because of the criminal tendencies of others is a major threat to freedom of expression. For this reason, it is a road we should not go down. If George Washington could be called an ass, we should surely have the right to call those who act like asses that.
Let me conclude, however, on a less triumphant note. When one believes one is in possession of the truth, it is natural to wish to silence those who espouse error, especially when the truth one possesses is as fundamental as religious truth. Extremist Muslims no doubt fall into this category. For them, eradicating blasphemy is far more important than freedom of expression. Persuading them to the contrary cannot be accomplished by political philosophy, but only through a change of culture or theology.
– Mr. Alexander is Warren Distinguished Professor of Law at the University of San Diego.