The Line Between "Hate Speech" and "Inciting Violence"
The First Amendment prohibits the government from banning expression under "hate speech" laws.
The First Amendment protects speech that advocates a person’s point of view – even if that point of view is based on hatred of a certain group of people or anger or resentment towards a particular person. While many countries prohibit "hate speech" that attacks or maligns people based on certain characteristics or identities, the Constitution does not generally permit viewpoint- or content-based regulation of speech, and generally holds that there is an inherent unfairness in allowing only certain opinions on a topic to be expressed. Thus, the Supreme Court routinely strikes down state and federal “hate speech” legislation that includes viewpoint-based restrictions on speech. Similarly, the Court has held that laws against “incitement,” “fighting words” and “true threats” must not curtail protected expression.
But some speech that might otherwise be protected as a point of view can be prohibited if a court determines that it is likely to incite violence. Speech “incites violence” under the Court’s definition if it encourages others to commit violent acts at a particular time and place. The Court differentiates between speech that serves as a general call for violent action and language that calls for violence at a specific time. Likewise, the Court has held that laws prohibiting “incitement” and “true threats” may criminalize only those statements where the speaker means to communicate a serious expression of intent to commit violence against a particular individual or group, and that and the specific threat is likely to be carried out soon.” [cite Virginia v. Black, 538 U.S. 343 (2003)]
Many other countries do have regulations that determine whether certain viewpoints can be expressed; these laws typically address speech disparages a particular race, gender, ethnicity, religious affiliation, or nationality. This may pose an issue if the country is able to claim that its laws apply to you and your art.
“Also, every artist should keep in mind that the website or server that hosts your work may include prohibitions against certain forms of hate speech in its terms of service.”
Since companies are usually private actors (and not part of the government), the First Amendment doesn’t apply to them in the same way. They are free to include provisions in their terms of service that allow them to censor content, and they have no obligation to post anyone’s work. Read more in our section on online contracts.
Inciting Violence
The U.S. Supreme Court has also upheld laws that regulate “fighting words” – speech that tends to immediately breach the peace, or is likely to start a fight. Speech that counts as fighting words can include insults, threats, and derogatory slang based on personal characteristics, but is generally limited to face-to-face communication (and therefore unlikely to be applied to Internet-based speech).
The more specific the threat, the more likely it is that a court will determine that it isn’t the type of expression protected under the First Amendment. Generally, only specific threats that target individuals at a particular time and place fall into this category, and the specific threat has to be likely to be carried out soon. More general threatening language is protected under the First Amendment.
“As long as the work cannot be construed as directing illegal action in the near future and as likely to actually bring about that action, then states cannot regulate it or punish the artist who created it.”
Related Cases
Nelson v. Streeter--Nelson painted an "offensive" image of a recently deceased Chicago mayor, which was seized by city aldermen.