Illegal Speech Trends (In the US)

by W.F. Price on July 11, 2012

For some reason, a lot of people don’t have a clear understanding of US law concerning speech. Many seem to think we have full free speech, while others think so-called “hate speech” is illegal. Neither is true, but there are restrictions on speech that people ought to be aware of.

First, we have libel, slander and copyright violations. This kind of speech is not generally criminal (although criminal defamation does exist in some states), but tortious, meaning you can be sued if you engage in it. Libel and slander, which fall under the rubric of “defamation,” involve printing (former) or uttering (latter) damaging lies about others. For example, if a feminist were to write that you were a rapist and you had never been convicted of rape you might have a libel case against that feminist. However, in the United States it is difficult to successfully sue for libel or slander, as the standards are quite high.

Copyright violations are simply theft of intellectual property. If you appropriate someone else’s work for profit or self-aggrandizement, you open yourself to a copyright suit.

Criminal speech is essentially divided into two categories: anti-government threats and threats against everyone else, with the anti-government threats traditionally taken far more seriously.

Much of the case law regarding criminal speech comes from the beginning of the 20th century, when the Western world was in a great deal of political ferment. Some new laws, including “criminal anarchy,” were passed in response. Criminal anarchy is the advocacy of the violent overthrow of the US government by force of arms or assassination of executives. This law remains on the books, and is punishable by up to 20 years in prison and loss of citizenship.

Of course, if you threaten the President, that is also a crime (class D felony). Same goes for other elected federal officials, but the Secret Service is a lot more vigorous about investigating presidential threats than others.

In recent years, in the wake of 9/11, a number of laws revolving around the concept of “terroristic threats” were passed, ostensibly to “fight terrorism,” but for the most part they have been used to prosecute or enhance punishments against people who (allegedly) threaten ordinary citizens.

Laws against terroristic threats are a significant departure from earlier precedent that governed speech, because the standard appears to have changed. It used to be that threats were illegal only if the threatened violence was both imminent and likely, but under terroristic threat laws “causing fear” is enough to get someone arrested. Additionally, in a number of states the threat does not even need to be verbal, but rather can be communicated by “innuendo” or body language (e.g. pointing a forefinger with thumb raised as in shooting at someone).

So, as we can see, speech that causes fear of bodily harm (or is claimed to do so) is generally considered unprotected, which is a significant departure from prior standards.

Therefore, if someone threatens to cause you bodily harm in an unspecific – and even improbable – way, the fact that it made you feel uneasy is enough to warrant arrest should police choose to act on a call. Interestingly, I’ve received a few of these threats over email, but haven’t reported them, as they were obviously bullshit, but I suppose I could have.

If one does a cursory news search on “terroristic threats” many of the cases appear to involve the mentally ill, drunks, and domestic disputes. The last category, of course, concerns us, because the standard for arrest is so ridiculously low that a mere verbal argument with accompanying gestures could easily result in an arrest, naturally of the male. And, of course, women can simply lie about it, and be safe in the knowledge that they will never be prosecuted for making a false accusation, because the language in the law is sufficiently vague that it would be difficult to prove malicious intent (feeling scared is a subjective mental state).

It’s pretty clear that we do not have “free” speech in the US, but we do have a lot of protections, even if they have eroded significantly in the past 15 or so years. However, as in so many other aspects of our society, we have the least freedom in the domestic sphere. We have far more leeway in making political speech, but even there clear, credible “imminent lawless action” threats are not OK, and the punishment for making them can be quite severe. When it comes down to it, one should avoid making any threats, but unfortunately even that cannot protect you in a domestic situation.

So, when you talk about “free speech,” keep in mind that it doesn’t really exist.

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