Does the First Amendment Allow Racist and Personal Threats of Violence?

It’s time for a statute prohibiting hate-speech, online bullying, and threats of physical violence.

Five years ago, then Representative Kiah Morris (D-Bennington) resigned from the Vermont Legislature, where she had earned the respect of her colleagues and a reputation as an effective promoter of equity and justice in Vermont.

The online harassment began two years earlier in a Twitter post from a local, self-described “white nationalist,” Max Misch. His initial post elicited an outpouring of hate and death threats against Morris from around the country.

In December of 2016, Morris obtained a protective stalking order against Misch, but the threats and hate speech continued and finally caused her to leave the Legislature out of fear for herself and her family, since apparently the law could not protect her.

Neither the FBI nor Vermont State Attorney General T.J. Donovan could find a legal basis or statutory precedent to charge Misch.

So, Bennington loses their chosen representative.

School board members are experiencing threats of violence around the country. As one Oregon school board member said, “I love serving on the school board, but I don’t want to die for it.”

Social media have caused a toxic bloom in threats of violence in the last decade. One can anonymously threaten death, vandalism, torture, or rape without legal consequence. Applicable law seems to only address physical stalking and material vandalism but not digital stalking or personal threats.

As an example, Pennsbury, PA, Schoolboard President Christine Toy-Dragoni received an online message threatening, “every woman in my family with rape, every man in my family with significant injury, publication of my personal information on the internet, loss of my privacy, my murder.”

In October, Attorney General Merrick B. Garland issued a memorandum saying that the Justice Department would respond to what he called “a disturbing spike of harassment, intimidation and threats of violence” against school board members and administrators. He further ordered the F.B.I. and federal prosecutors to work with local law enforcement officers to monitor threats against people working in the nation’s 14,000 public school districts. But that leaves unanswered the question of whether there is an actionable basis in law for prosecution.

Similar online threats of violence have been used against election workers, select board members, and other citizens volunteering their time to serve on civic boards.

Under the anonymous cover of social media, many are using threats of violence to express venomous sentiments and non-political opinions. There’s a significant difference between attending a school board meeting in person and using one’s right of “free speech” on an issue under consideration within the bounds of civil discourse. And public speech leaves room for emotional speech, including anger. But anonymous threats of violence are the province of cowards who lack the courage to deliver their thoughts in person and on the record.

When I was young, town meetings in Morrisville and Lincoln usually contained opinions expressed with deep feeling, sometimes there was anger, sometimes cynicism, sometimes even rural humor. But personal attacks were rare.

Townfolk sat together in a room — neighbors, friends, tradespeople, and strangers. Any threat of violence would be recorded and long remembered in the community and be subject to ongoing opprobrium.

After all, we saw each other weekly in the shops downtown, in church, in the post office, or at the dump. The connectedness of community tempered our discourse and affected how we dealt with one another.

Whether due to mental illness or a mind overcome with anger and fear, it’s cowardice to sit alone at home with a cellphone or computer and compose anonymous threats of physical or sexual violence, to champion anti-Semitism, racism, or sexism, or to commit random acts of vandalism under cover of darkness. This is the realm of the cowardly and fearful.

And these rampant subcultures of threat and cowardice are having a calamitous effect on civil society internationally. The discernable  good that social media apps such as Instagram, Facebook, and Twitter can point to, such as maintaining communication networks among friends and family, are now offset by a raging subculture of ideological outliers, conspiracy groups, “influencers,” and cults like Q-anon with no regard for civil society.

Conservatives love to invoke the “framers.” But the free speech these enlightenment figures celebrated and embedded in law was not by its nature anonymous. It was put forward in public speech or the printed word. The Framers could not have envisaged the smartphone, the Internet or social media platforms, which in practice are becoming an assault on free speech and will in time will undermine it.

Conservatives also invoke pejoratives like “moral relativism” and “cancel culture” to describe their liberal counterparts, perhaps because absolutes are simple and easy to remember, if not to live by.

In fact, our judicial system was designed for the reality of moral relativism. Whenever we’ve tried to impose moral absolutes they’ve failed. A judge must understand and act on the relative merits of each case.

Remember the Rockefeller drug laws and their mandated sentencing? In the ensuing decades, judges had little choice but to lock up more young adults than ever before in our history and drug crimes migrated from the street to big Pharma.

Life simply doesn’t respond well to absolutes.

As a matter of ethical convenience, for example, conservatives interpret the Sixth Commandment, “Thou shalt not kill” liberally in states where the death penalty survives.

Since 1787, our Constitution’s First Amendment has protected, if not fully defined, free speech. Cognizant of social change and technological evolution, subsequent jurists have added additional amendments to the Constitution and overseen statutory precedents that reinterpret the Framers’ original language. Strict constructionists like Scalia and Thomas have always fought this, claiming that the original constitutional language tells us all we need to know. How can that be in a world where change is the only constant?

Among the changes strict constructionists have felt free to make, in the face of their avowed belief in the inviolability of original language: the judicial rationale behind Citizens United was “free speech.” But in a deep obeisance to money’s capacity to corrupt civil society, the Supreme Court then interpreted “speech” as money and corporations as “people.”

Throughout history, jurists have imposed limitations on speech on a host of issues including child pornography, fraud, obscenity, libel, slander, intellectual property violations, certain “false statements of fact,” and speech that “incites an immediate breach of the peace.” The freedom of expression that protects public proclamations does not include yelling “fire” in a crowded movie theater. Free speech is being continuously redefined in light of circumstance and technology — hardly an absolute right, as some conservatives like to claim.

It still protects, and should, the effusion of political rhetoric so riddled with made-up facts that fact-checking’s become a growth industry. But the absolutist defense that “sunlight is the best disinfectant” ignores the lack of “sunlight” in online communities.

In the real world, there are facts, opinions, and lies. Worthwhile opinion is predicated on fact. There are no “alternative facts.”

Hate speech has been defined and banned by many of America’s democratic allies. Will it be here?

Life would be much simpler if we could live by absolutes, but the great challenge and beauty of life lies in its complexity, which places on us the responsibility to think and learn and listen before we act – because the right answers are hardly ever simple.

The world has changed. Our founders never envisioned “social media” that can discourage public service, erode civil society, and foment insurrection. It’s time to carefully craft legal limitations on hate speech and threats of violence that often lead to real violence.

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