On January 6th, President Donald Trump held a rally near the White House and urged his supporters to march on the Capitol where members of Congress were certifying the results of the 2020 presidential election. “We’re going to walk down, and I’ll be there with you,” he said. “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.”There is no doubt that Trump’s speech was inappropriate, imprudent, rash, offensive, and even repugnant. But, it is more difficult to determine whether Trump’s comments constitute incitement to imminent lawless action, a type of speech not protected by the First Amendment.
Although many countries across the globe have laws prohibiting hate speech, the United States protects offensive speech about certain groups that historically have been subject to discrimination. This guide explores the First Amendment issues that arise from attempting to regulate hate speech. The guide also goes into existing limitations on expression, including incitement to imminent lawless action, fighting words, true threats, and harassment.
The Fourth Circuit is the first federal appellate court to find parts of the law unconstitutionally overbroad under the First Amendment. The ruling could impact Attorney General William P. Barr’s plan to use the law to prosecute individuals accused of inciting riots during the demonstrations following the police killing of George Floyd.