The First Amendment under attack

The First Amendment should undergo significant changes, including jail time for hate speech and false news reports.

These findings come from a recent poll and analysis by the Campaign for Free Speech. See https://www.campaignforfreespeech.org/free-speech-under-dire-threat-polling-finds/

The organization found that 51% of Americans think the First Amendment is outdated and should be rewritten. 

The poll found that 48% believe “hate speech” should be illegal. (“Hate speech” is not defined but left up to the individual participant.) Of those, about half think the punishment for “hate speech” should include possible jail time, while the rest think it should just be a ticket and a fine. More millennials and Gen-Xers think hate speech should be made illegal—as do women, blacks, and Hispanics. The various regions in the United States think roughly the same.

The fundamental problem with regulating hate speech is who defines it? The courts have generally shied away from restricting hate speech because of that issue. The most important U.S. Supreme Court case that could be applied is Chaplinksy v. New Hampshire, a 1942 decision in which the court put forth the “fighting words” restriction on speech.

Chaplinsky was arrested for provocative statements made in the town square. While being transported to the local police station, he called the town marshal “a damned fascist and a racketeer.”

Justice Frank Murphy defined fighting words: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting, or ‘fighting’ words, those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

But some legal scholars think the lower courts have defined fighting words in an inconsistent way, while others think the decision remains a threat to free speech.

Whatever the case, an arrest for using fighting words is a rarity. One happened a few years ago here in Philly when a local teacher got in a cop’s face and threatened him and his family.

An estimated 57% think that the government should be able to take action against newspapers and TV stations that publish content that is biased, inflammatory, or false. Only 35% disagree with the statement, with the rest undecided. Men and women poll about the same—as do various sections of the country. The only slight difference is that millennials rise to a level of 61%.

Surprisingly, in my view, the poll found that many think the government should impose jail time for those who publish fake news. A total of 56% said that journalists should only face a fine, but the other 46% said that actual jail time should be imposed on the offenders.

The implications of the poll seem obvious, but the ramifications not so much.

The poll does underline the antipathy of the public toward the media, and it comes from all age groups, geographic regions, income brackets, and races.

The media would be well served if they did not ignore the bitterness toward news organizations from just about every group.

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