“Hate speech” is protected
Christi: CNN Legal Analyst Page Pate is here. He’s a Criminal Defense and Constitutional Attorney. And this is important because there is a lot of gray area here. When does hate speech cross the line into a hate crime?
Page: I mean, we’re going to see, right? I mean, with all these protests across the country, we’re seeing that conflict in real time. The First Amendment protects hate speech, so a group can protest, they can talk about how they hate the Jews, they can talk about how they hate African Americans, entirely protected by the First Amendment. What is not protected is either violent conduct, like we just saw on the screen, people hitting each other, or threats of violent conduct. So, when speech crosses the line into a threat of some sort of imminent harm or danger, then you’ve got a potential problem and a potential crime.
Christi: Okay, so let me ask you this. There was an image last week that we saw of some the white supremacists that were getting ready to rally. They were holding guns and they were marching into, you know, their space there at the rally. Does holding a gun, which is their Second Amendment right, does that move into a criminal area in some sort as you talk about a threat?
Page: I think it can. When we talk about protecting freedom of speech, we’re talking about protecting the expression of an idea. Even if the idea is something we reject as the majority of Americans, you’ve got a right to express that idea. But what idea are you expressing when you’re giving hate speech? When you’re saying these things and you’re carrying a firearm? Are you really expressing a threat to the individuals around you who may disagree with your ideas? So if what you’re doing is threatening people, either directly or indirectly, that can possibly be a crime. It’s not something the Supreme Court has looked at before. They’ve protected cross burners. They’ve protected flag burners. But when someone has a firearm and at least says words that indicate they’re willing to use that firearm at that location at that time, that can be a crime.
Christi: That’s something different. You know, it’s interesting because the mayor of Boston had stated yesterday at a press conference he didn’t want to approve this and give this two-hour permit, but by law, he had to.
Page: That’s right. You know you have to, you can make them comply with the requirements of a permit, local ordinances, make sure it’s located in a particular area, it doesn’t disturb traffic kind of things of that nature. But you cannot discriminate based on the content of the message. So, if he’s going to give a permit to the counter protestors, he’s got to give a permit to the people who are with the alt-right or the neo-nazi’s as well.
Christi: So let me ask you this. If we would see a repeat in Boston like we saw in Charlottesville, is there at any point where the law would come in and say, “Listen, this particular group that is causing this problem.” Can they ban them from any sort of rallies for a specific time period or is it…look, it’s their free speech?
Page: RIght. I think that’s a possibility. I think if law enforcement and municipalities, if they can show a pattern of conduct, this particular group is not there to simply express an idea, they are there to cause violence. They are there to incite people to riot. If you can show a pattern of that type of activity, even though it’s very difficult to do under the First Amendment because you’re stopping speech before it happens. And that is always frowned upon by the Supreme Court. But if you can show one particular group is really bent on violence, bent on threatening people, and causing the type of problems that we saw in Charlottesville, then yes. I think a law that’s tailored to that type of activity would pass constitutional muster.
Christi: All right, Page Pate. Always appreciate boy, your insight in all of this. Thank you.
Page: Thank you, Christi.
Page Pate is an accomplished trial lawyer with over 25 years of experience in criminal defense, civil litigation, and whistleblower representation. Page is listed in The Best Lawyers in America, Top 100 Lawyers by The National Trial Lawyers, and named to the list of Super Lawyers for the past 15 consecutive years. Page is a frequent expert legal analyst for local and national media and has served as an Adjunct Professor at the University of Georgia Law School. Read Page’s reviews on AVVO. Follow Page on Twitter @pagepate and on Linkedin.