October 24, 2025 • 26 mins
We map the freedom of speech by categories, separating protected ideas from unprotected harms like libel, obscenity, true threats, and incitement, and explain why political speech sits at the core. We also clear up the biggest myth: there is no “hate speech” exception in American law.
• meaning of “the” freedom of speech and core protection for political speech
• libel and slander as tort-like harms outside First Amendment protection
• evolution of incitement doctrine culminating in Brandenburg
• line between ideas and conduct, including true threats
• symbolic speech, flag burning, and viewpoint discrimination
• why hate speech is not a legal category, Terminiello and Matal v Tam
• compelled speech, Barnette, and modern edge cases
• time, place, and manner rules and content neutrality
• permits, sign regulations, and Citizens United’s narrow holding
• schools, social media, and emerging questions for speech online
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Episode Transcript
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SPEAKER_00 (00:00):
Welcome back to Civics in a year, where we're
today going to talk aboutfreedom of speech.
We have Dr.
Sean Beyenberg back with us.
We're kind of dissecting theFirst Amendment because there is
a lot to it.
And previously we had talkedabout the freedom of religion,
and there's three differentepisodes on that because, again,
there's a lot to it.
So, free speech today, Dr.
(00:21):
Beyenberg, what is free speech?
SPEAKER_01 (00:24):
We couldn't do free speech in a year with how long
the doctrine and how convolutedthis one is.
So I will try to stay on theessentials.
So one thing that I think iseasy to miss is we say freedom
of speech, but the text actuallysays the freedom of speech.
And that's because there werecertain things that were sort of
understood to be outside of thatsort of traditional
(00:45):
understanding of freedom ofspeech.
So, and we'll come back to someof these later.
But for example, libel was neverassumed to be a part of the
freedom of speech.
That's one that was out.
Originally, obscenity, or excuseme, uh it was held to be outside
the freedom of speech, whichactually still remains true.
The doctrine has more or lessjust gotten more squeamish about
(01:07):
saying what is obscenity.
It's harder to gauge, butconceptually, obstinate
obscenity remains outside theprotection of the freedom of
speech.
We will later on potentiallywe'll come back and talk to you.
Uh the courts have held thatcategories of words like
fighting words are potentiallyoutside the freedom of speech.
But that's one where the courtshave maybe softened a little
(01:29):
bit.
And for example, an idea thatthere's hate speech has been
alleged by some to be beyond thefreedom of speech, but it's it's
that is not an exception thatthe court recognizes.
So things like obscenity, thingslike libel.
What is libel?
SPEAKER_00 (01:45):
So for listeners who aren't sure, what is libel?
Sure.
SPEAKER_01 (01:48):
Thank you.
Yes, uh, appreciate you, Claire.
Yeah.
So libel and slander, it'seffectively these are false
statements of fact that cause aharm to someone.
And conceptually, the way youcan think of this is that it's a
property claim.
Because, for example, if you,Liz, say Professor Beinberg is
(02:08):
super racist, and I heard himsay this thing, and that you
know, ASU fires me and I can'tgo get a job, I have suffered a
property loss the same way as ifyou had backed up your truck
into my house and like knocked awall in, right?
That has cost me money.
So, libel, uh effectively, ifthat were to happen, I would sue
you and say, you have saidsomething that is factually
(02:32):
untrue and it caused mefinancial damage.
You effectively then need tocompensate me for like what my
earnings would have been if I'dlost my job.
So that's part of why the courtcan understand it outside
freedom of speech, because insome ways it's closer to like a
tort kind of a claim where yourproperty has been damaged.
So the court has held thatthat's outside of it.
(02:52):
The court, I'll talk about thisin a little bit later, but has
held that things like incitementare basically unprotected by
freedom of speech.
Effectively, when the linecrosses to look more like
conduct than speech and ideas,the court holds that that is.
Those cases get reallycomplicated because you can be
committing an act that's sort ofan action and sort of speech.
(03:14):
But basically, basically, stuffthat looks much more like
conduct is uh less protected.
Stuff that's more about ideas ismore protected.
Clearly, at the core of it ispolitical speech, is the sort of
the fundamental, very, verycenter of the purpose, but it's
not the exclusive purpose uh offreedom of speech.
(03:34):
So there's a way you can thinkof it as these are exceptions,
but the way that I think of itis these are the freedom of
speech was never held to includethese parts of it.
And state constitutions writethis a little differently, but
this largely tracks with how thestate constitutions have dealt
with speech uh as well.
SPEAKER_00 (03:52):
So freedom of speech is not an absolute thing, right?
That it's not covering everylittle thing that we're thinking
about because you know youbrought up obscenities and it
made me giggle a little bitbecause of the I know it when I
see it, right?
I had to I had to teach that inAP government.
When you talked aboutincitements, can you get a
(04:14):
little bit more into what thatmeans?
SPEAKER_01 (04:17):
Right.
So effectively, the the way thatthe court has thought of, and
we'll confine it to politicalspeech for now.
Um I do want to back up though,because you said we can think of
freedom of speech as notabsolute.
The better way that I think ofit is we should think of freedom
of speech as not being allcapacious, that basically not
everything falls within it.
Rather, I and I just say thatbecause if we say it's not
absolute, that ends up basicallyturning into more of a balancing
(04:40):
test kind of an issue.
Whereas like this is superimportant or super offensive,
and that's not the way that thecourt tends to think of it.
It's instead more categories.
These are categories that arewithin that freedom and outside
that freedom.
So to your question aboutincitement, so a really, really
brief sort of summary of the waythat the courts have thought
about this.
So for much of American history,the court used a test that was
(05:03):
not very protective, and thiswas mostly lower courts, called
bad tendencies, in which speechthat had a bad tendency to cause
illegality or chaos ordisruption of the public peace
was unprotected.
Unsurprisingly, that's not avery protective standard.
And that falls away over the1920s, and the court moves
toward what's called the clearand present danger test, which
(05:27):
is sort of comes and fits andstarts, but moves basically by
the 50s is the standard they'reusing, in which they're has to
fire in a movie theater.
Nominally, yes, although thatanalogy is really bad uh for
various reasons that I think youfolks will talk about in more
detail.
I I think that's even a specificcase.
I think that's later on.
(05:47):
So I'm not going to get too intothat one.
But the court moves towardeffectively saying, no, there
has to be a pretty clear andtight connection between speech
and something illegal that'sgoing to happen or something
dangerous that's going tohappen.
And then in the 1960s, the courtreally tightens that up to say,
in a case called Brandenburg,which remains the operative test
(06:09):
today, which effectively saysthat political speech can be
restricted if it is incitingimminent lawless action.
Right.
So like we let we should go dothis thing right now, because
the court is conceptually sayingat that point it's closer to the
action itself than just saying,like, and so in that particular
(06:32):
case, it was a group of Klansmenout in a forest saying there
should be some revengeance takenagainst the U.S.
government, right?
And independent of a crimeagainst good grammar, as I like
to joke, when they're sayingrevengeance, this is not a this
is not an articulable act,right?
It'd be very different if theysaid we should all go, you know,
(06:54):
attack that government building,grab the, you know, grab your
torches and let's go do it,right?
That's incitement.
But just saying we really don'tlike the government and we wish
there would be revenge taken onit, the court says that is
closer to ideas than action.
And so incitement ends up beingbasically the framework for
(07:15):
particularly stuff that fallswithin that freedom of speech.
But that's that that'seffectively the standard that
the court wants to use.
Now, the court does similarly interms of thinking of categories,
and I think that I think thatthe conduct framework helps us
because, for example, truethreats are another thing that
the courts have held areunprotected, right?
(07:36):
I am going to kill you, right?
Like that, like that is abasically a in a way that is
different than I don't like youor you have terrible ideas or
and so again, these get reallymessy in terms of the fact
pattern of is this actually atrue threat?
Is this actually incitement?
But the conceptual framework, Ithink, is pretty clear, which is
the closer it is to conduct, theless it's protected.
(08:00):
The flag are we doing a flagburning podcast as one of the
standalones?
I can't remember.
Do I if we're doing the flagburning ones, uh, I'll give it
really short.
But right, this is a complicatedcase in which the court has
basically, you know, in theory,this isn't about, as the
dissents say in those cases,you're not necessarily
expressing an idea when you burna flag, right?
(08:21):
That they're saying, like,you're not actually saying
something.
And the majority wants to say,yeah, you are still saying
something.
You are saying that you arefundamentally disapproving of
US, the US government, USpolicy, et cetera.
And the court effectively says,if the government is passing a
law that like nobody can burnanything made out of nylon for
environmental reasons, that'sfine.
(08:42):
But the court basically buildsup kind of doctrine saying,
particularly viewpointdiscrimination, saying the
government can't say these ideaswe like and these ideas we don't
like.
So if the Boy Scouts can burn aflag reverently, then we can't
say, except those filthyhippies, can't burn the flag
irreverently.
You can either burn everythingor burn nothing because you're
(09:03):
caring about the actual actitself.
But if you're trying to suppressconduct because you're trying to
suppress the ideas, then thecourt says that's that's a
problem.
That kind of speech uh isprotected.
And there's similar things withlike there's cases on like
cross-burning, and those getreally messy in terms of the
fact patterns.
But conceptually speaking, thecourt basically wants to say if
(09:25):
the government is trying to stopyou from doing this because the
conduct itself is a problem,that's probably okay.
If they're trying to stop youbecause they don't like your
ideas or they don't like who youare as a speaker, that's the
core of what the First Amendmentis supposed to protect in those
grounds.
And I do think, so yeah,hopefully that covers uh
incitement.
Again, students then always liketo say, well, what about this?
(09:46):
If they say, like, let's go dothis in like 30 minutes or 40,
like that, that's I'm notgetting bogged down into all
that.
But the framework I think ispretty clear.
SPEAKER_00 (09:56):
So you alluded to at the beginning hate speech.
And what are the limits on hatespeech?
Because it's funny, I actuallytalked about this in my CEL 100
class.
It was brought up that hatespeech shouldn't be a thing.
And I asked the student, well,what is hate speech?
And they really had a hard timecoming up with a standard
(10:20):
definition.
So what allows the government torestrict hate speech?
SPEAKER_01 (10:29):
And the answer under the court's doctrine is nothing.
The hate speech is not acategory that the court has said
is beyond the freedom of speech,largely on the grounds that you
alluded to.
So uh there's a there's a casethat I think is actually the so
the clearest explanation of thelogic of this, even though
ironically it's in a dissent.
(10:50):
So it's a 1949 case calledTermanyello v Chicago.
And in that case, effectively,the fact pattern is really
complicated, but effectivelythere is a group of fascists in
a room in a gymnasium givinglectures that are both racist
and then also anti-communist.
So you have basically communistsoutside throwing bricks inside,
and the Nazi fascists insidecomplaining about them.
(11:13):
And the police are trying tokeep the cordon.
And eventually the cordon fails,and there's a riot, and they
charge the guy with breach ofthe peace, and he says this
violates my freedom of speech.
And the dissent wants to say,look, there's actually, even
under clear and present danger,we probably should let this
prosecution happen.
They're not prosecuting himbecause they don't like his
ideas.
They're prosecuting him becausea clear and present danger of
(11:35):
violence happened.
And how do we know that?
Because there was a literalriot.
The police were trying toprotect this guy talking.
But and that's the majoritysays, if we let basically people
say we don't like hearing whatthose fascists say, stop them.
That creates, they don't usethis phrase, but later cases do,
a heckler's veto, where someonecan say, I'm offended, you don't
get to say that.
(11:56):
And the courts increasingly havesaid, no, in fact, maybe that's
a core purpose of freedom ofspeech.
But in the term in yellow case,the dissent wants to say the
fact pattern here means weshould allow this prosecution.
But fundamentally, he's actuallycloser to the majority because
he says very striking language,like, look, speech is protected,
(12:16):
whether it's and he says, prothis religion, that religion,
pro this race, that race.
He says government does not getto basically pick what it wants
in terms of good speech and badspeech.
It basically he says there needsto be an utmost freedom of
utterance.
Courts shouldn't be turned intouh organs of popular
intolerance, effectively vetopoints.
(12:38):
But he he says it says, look, ifthe purpose of this is not to
suppress the guy's ideas,government should be able to do
it.
But he's very explicit and saysreally offensive speech ought to
be protected.
If it's and he goes through andsays basically racist, you know,
not racist, pro-ro-Catholic,anti-Catholic, pro-Protestant,
whatever, right?
He says that should beprotected.
Again, even in the dissent,which I think is interesting.
(12:59):
And we see this, this is a themethat I think we overstate the
level of disagreement on theSupreme Court in terms of the
number of cases.
Most cases are boring statutorystuff nobody cares about.
There is, I think, increasinglya disagreement in sort of
constitutional philosophy.
We'll talk more about how tointerpret the constitution
between sort of originalists andso-called non-interpretivists or
(13:23):
living constitutionalists.
But one thing that there isagreement on, and 9-0 case a few
years ago, Metal Vam lays thisout very explicitly, where they
say there is no such thing ashate speech.
This is not a concept that werecognize in law, because people
are going to say, and who's towho's to determine what counts
(13:44):
as hateful and who's going to beable to claim this is offensive?
And so everybody from Sotomayor,who I think was considered the
most progressive justice at thetime, to Clarence Thomas, who
was considered sort of the mostconservative justice, if we want
to use those labels, agree thatas I've laughed to my students,
the concurrence that's writtenby Kennedy with Sotomayor
joining, if anything, they'rearguing it should be even more
(14:06):
aggressively protected onfreedom of speech.
Now, how do I word thisdelicately?
This will not stop people fromappearing on your favorite cable
news show.
And I can think offhand ofexamples from both parties in
recent memory who have said hatespeech is unprotected, or every
knucklehead on Facebook thatsays that.
They are wrong.
There is no category of hatespeech that the court
(14:29):
recognizes.
It doesn't exist.
It is not like true threats, itis not like incitement, it is
not a thing.
The fact that someone doesn'tlike something, the courts have
held, if anything, is grounds tobe more protective of it, not
less protective of it.
Now that doesn't mean that thecourts have said that you can't
have a hate crimes legislation.
So legislate so law, but it'sdifferent, right?
(14:52):
And so that the courts havebasically said something that we
can all agree is fundamentallywrong, so say murder or
vandalism or something, right?
The thing is wrong in and ofitself.
The state can suppress that inand of itself.
The court said nine-zero case,scalia in the majority, scalia
in the opinion, if you want tosort of, you know, again, do the
(15:12):
sort of left-right thing, saysif the thing is fundamentally
already banned, you can addbasically a kicker if there's
done for a hateful reason.
So like you can add extra yearsto the penalty.
But you can't make somethingthat is fundamentally protected
unprotected because it involveshate.
And in this case, speech isfundamentally protected.
(15:33):
It doesn't suddenly becomeunprotected because uh it
involves involves sort of ideasthat some people think are
hateful.
So the Metalvi TAM case, again,about 10 years ago, I think lays
this out pretty clearly.
But I also think that thatTermaniello case from 49, Robert
Jackson's, again, ironically,the dissent, I think lays this
(15:54):
out really, really well.
That the purpose of speech isnot to suppress offensive ideas,
it's in fact to sort of promoteand protect dispute and
disagreement in the society inwhich we're supposed to argue
about things.
Civilly, ideally, but civil iscivility is not a requirement of
freedom of speech.
It's a good practice, it's onething that's prudent because
(16:16):
it's persuasive, but it is not arequirement.
SPEAKER_00 (16:20):
I'm glad that you brought up Mattel V.
Tam, because that is actuallythe case I taught in class
because it was fun to talk tothe students about, you know,
the the quick summary of thecase.
Simon Tam wanted to register hisband's name.
They were called the slants.
Simon Tam is an Asian American.
And part of his argument washe's trying to kind of take back
(16:42):
that word, right?
It was a very disparaging word.
He's trying to do that.
And the office was like, no,there's something called the
disparagement clause.
And it was really fun to talk tostudents through that because we
can't have laws that say, well,this group can do it, but this
group can't.
It's like this is kind of an allor nothing.
(17:04):
So Simon Tam trying to reclaimthis, and it was actually fun,
and this is just kind of anaside.
There, my kids were on Twitterwhile we were doing a moot
court, and Simon Tam actuallyinteracted with the students.
Oh, that's fun.
And he had the the slants have asong about this, but it it's a
good case to talk about,especially when we're talking
(17:26):
about, you know, disparagementor hate speech, because in this
scenario, Simon Tam is an AsianAmerican, and it, you know,
looking through the thearguments and things, there's a
lot of different examples ofthis.
And I I think that that one is aclassroom-friendly version, you
(17:47):
know, when you're we're tryingto talk about hate speech.
But that is, I think that's oneof my favorite Supreme Court
cases and terminello alsobecause it just lays groundwork,
right?
My students in my CEL classcouldn't come up with a
definition of hate speechbecause what is offensive to me
(18:08):
might not be offensive toanother person.
And so it's hard to come up withthat big definition of hate
speech.
And I'm glad that you brought uphate crimes, right?
Because now it's not justspeech, it's an act.
SPEAKER_01 (18:22):
Right, right, right.
And then that I think isgenerally a good way, generally
a good way to think about theexemptions, like that what that
the court and similar you canthink of this another way too,
that they're basically sayingare there ideas attached to it?
The more that there's an ideaattached to it, good or bad,
versus conduct, or in the caseof obscenity, no idea, right?
Or libel as a property damage,right?
(18:44):
It is worth flagging just acouple of other things.
I know this is probably one ofthe longer podcasts, but that I
since we only get the one, Iguess, on speech.
Again, we can be here all day,but there's a couple of other
doctrines that I want to justflag.
So one is the idea of compelledspeech, that the government
cannot make you say something,that this has basically been
held to be kind of the inverseof that.
(19:05):
Most famously, a case inBarnett.
The court is sort of dealingwith the implications of that
right now.
Again, is the interaction ofanti-discrimination law and
compelled speech doctrine issomething that's popping up in
the last in the last few years.
But, you know, there's someweird edge cases.
So if you are a governmentemployee, you obviously have
less freedom of speech.
(19:25):
You can't just say, well, I can,you know, tell my boss off and
I'm protected as freedom ofspeech.
Well, no, like if you are inprivate industry, you can't do
that.
So again, it's not exactly aone-to-one, but those cases are
complicated.
There is one set of restrictionsthat I would be remiss if we
didn't talk about, and those areso-called time, place, and
manner restrictions.
(19:46):
And in those, the courts havebasically said, again, emphasis
on you can't have viewpointdiscrimination, you can't have
speaker discrimination.
But if you want to set neutralrules, no one can run a bullhorn
at 2 a.m.
Whether this is pro-DonaldTrump, anti-Donald Trump,
pro-Joe Biden, it doesn'tmatter, right?
We want to sleep, knock it off,right?
(20:08):
So if the purpose of that islike to let people sleep, it's
fine.
You know, if if I'm running aclassroom, you don't have the
freedom of speech right to startprotesting through my classroom
and disrupting my ability to domy class.
Whether, again, whether you'reagreeing, whether you're saying
something politically I mightsupport, it is irrelevant,
right?
(20:29):
Basically, that's you know, atime or a place or a manner.
So the courts have basicallysaid as long as it's content
neutral and as long as it'sbasically actually trying to
secure some public good ratherthan suppress an idea, then
yeah, the government can dothings that sort of at the
margins restrict speech, butit's not because they want to
change the ideas, right?
(20:49):
It's or shape the idea flow orthe arguments.
It's because people need to beable to sleep.
I need to be able to teach myclass, you know, during, yeah.
So if time, manner, and placerestrictions mark affecting
speech can happen with time,manner, and place, but it has to
be fundamentally viewpoint andcontent neutral.
(21:11):
That the government isn'tbasically picking winners and
losers.
Um that's that's a doctrine thatfolks often lose, but I think is
important to remember.
SPEAKER_00 (21:18):
So I can't, we can't close a street down to do a
protest without a permit becausenow I'm just obstructing
traffic, right?
That's not impinging off myfreedom of speech.
That's a time, place, and mannerissue.
Now, if we have a permit, that'sa totally different issue.
SPEAKER_01 (21:34):
Right.
And it's sort of and itimplicates that one even
implicates sort of a conductthing as well, right?
It's one thing if you're likewalking on the sidewalk with
whatever your statement is, butif you're actually sort of
impeding other people's abilityto do their thing, then yes.
But that that's a that's anotheranother uh great uh example.
You get some fun cases.
So I think you're from Gilbert,as I recall correctly.
There was one from there a fewyears ago, which effectively was
(21:57):
can the government say thatpolitical candidates can put a
particular kind of sign up onthe street, but churches can't.
Uh and the Supreme Court struckthat down and said, Everybody
gets those kinds of signs, ornobody gets those kinds of
signs.
You don't get to say, these arethe kinds of people that we want
to have do this.
And that's uh, I will say too,maybe this is a long sort of
(22:20):
sidebar.
That's fundamentally actuallywhat the Citizens United case is
about.
It's much narrower than peoplethink that it is, but uh, it's
effectively that you're notbecause you've organized as a
particular kind of pull ofgroup, corporations effectively
don't get less ability to justcommission an ad than anybody
else does.
(22:40):
You either all get to commissionads or you don't get to.
Because the law at issue in thatcase said most people can run
ads within this time period, butthis group of people can't.
So again, it's a much narrowerkind of a case than this big
sweeping everybody has like, oh,it's about money and speech.
It's really not about that atall.
It's again, boring andtechnical.
Law, if you're doing it right,is boring and technical, not
(23:03):
fun.
So I'm not the marketing peoplefor civics in a year, so I can
say that.
SPEAKER_00 (23:07):
But uh because I disagree.
I think it's very fun to likejust dig into the words and and
really, you know, and forlisteners, Dr.
Bibert talked about Barnett'sWest Virginia versus Barnett,
and that is a Pledge ofAllegiance case.
That's compelling speechbecause, and again, this is
we're gonna do a whole episodeon Supreme Court cases and the
(23:28):
Pledge of Allegiance becausepersonally, for me, the the
fight between freedom ofreligion, freedom of speech,
being in a public schoolcompelled speech.
It's so interesting that I wantto do an episode on it because
that's what affects students inclasses.
And talking about can, I mean,speech is speech is not easy.
(23:49):
I thought the religion stuff washard and we had to do three
episodes, which we did.
And now I'm like, maybe we needmore episodes on speech because
it is it's a lot, there's a lotgoing on, and the court really
has to grapple with all of thesedifferent things going through
(24:10):
the most, I think one of themost recent ones, thinking about
the Snapchat case.
I do not have a Snapchat becausethat's just not my generation.
But you know, you have certainrights at school, they don't
stop at the schoolhouse gate,but young woman put something
that the school deemed offensiveon her Snapchat, you know, she
(24:30):
wasn't at school.
And so as technology movesfaster, it'll be interesting to
see how the court deals withspeech and how this goes kind of
moving forward.
Oh my goodness.
Now I see this this, you'reright.
We could do civics in a yearfree speech edition.
We could maybe that could be forthe Constitution's 250th.
(24:54):
Dr.
Beyenberg, thank you so much.
Welcome back to Civics in a year, where we're
today going to talk aboutfreedom of speech.
We have Dr.
Sean Beyenberg back with us.
We're kind of dissecting theFirst Amendment because there is
a lot to it.
And previously we had talkedabout the freedom of religion,
and there's three differentepisodes on that because, again,
there's a lot to it.
So, free speech today, Dr.
(00:21):
Beyenberg, what is free speech?
SPEAKER_01 (00:24):
We couldn't do free speech in a year with how long
the doctrine and how convolutedthis one is.
So I will try to stay on theessentials.
So one thing that I think iseasy to miss is we say freedom
of speech, but the text actuallysays the freedom of speech.
And that's because there werecertain things that were sort of
understood to be outside of thatsort of traditional
(00:45):
understanding of freedom ofspeech.
So, and we'll come back to someof these later.
But for example, libel was neverassumed to be a part of the
freedom of speech.
That's one that was out.
Originally, obscenity, or excuseme, uh it was held to be outside
the freedom of speech, whichactually still remains true.
The doctrine has more or lessjust gotten more squeamish about
(01:07):
saying what is obscenity.
It's harder to gauge, butconceptually, obstinate
obscenity remains outside theprotection of the freedom of
speech.
We will later on potentiallywe'll come back and talk to you.
Uh the courts have held thatcategories of words like
fighting words are potentiallyoutside the freedom of speech.
But that's one where the courtshave maybe softened a little
(01:29):
bit.
And for example, an idea thatthere's hate speech has been
alleged by some to be beyond thefreedom of speech, but it's it's
that is not an exception thatthe court recognizes.
So things like obscenity, thingslike libel.
What is libel?
SPEAKER_00 (01:45):
So for listeners who aren't sure, what is libel?
Sure.
SPEAKER_01 (01:48):
Thank you.
Yes, uh, appreciate you, Claire.
Yeah.
So libel and slander, it'seffectively these are false
statements of fact that cause aharm to someone.
And conceptually, the way youcan think of this is that it's a
property claim.
Because, for example, if you,Liz, say Professor Beinberg is
(02:08):
super racist, and I heard himsay this thing, and that you
know, ASU fires me and I can'tgo get a job, I have suffered a
property loss the same way as ifyou had backed up your truck
into my house and like knocked awall in, right?
That has cost me money.
So, libel, uh effectively, ifthat were to happen, I would sue
you and say, you have saidsomething that is factually
(02:32):
untrue and it caused mefinancial damage.
You effectively then need tocompensate me for like what my
earnings would have been if I'dlost my job.
So that's part of why the courtcan understand it outside
freedom of speech, because insome ways it's closer to like a
tort kind of a claim where yourproperty has been damaged.
So the court has held thatthat's outside of it.
(02:52):
The court, I'll talk about thisin a little bit later, but has
held that things like incitementare basically unprotected by
freedom of speech.
Effectively, when the linecrosses to look more like
conduct than speech and ideas,the court holds that that is.
Those cases get reallycomplicated because you can be
committing an act that's sort ofan action and sort of speech.
(03:14):
But basically, basically, stuffthat looks much more like
conduct is uh less protected.
Stuff that's more about ideas ismore protected.
Clearly, at the core of it ispolitical speech, is the sort of
the fundamental, very, verycenter of the purpose, but it's
not the exclusive purpose uh offreedom of speech.
(03:34):
So there's a way you can thinkof it as these are exceptions,
but the way that I think of itis these are the freedom of
speech was never held to includethese parts of it.
And state constitutions writethis a little differently, but
this largely tracks with how thestate constitutions have dealt
with speech uh as well.
SPEAKER_00 (03:52):
So freedom of speech is not an absolute thing, right?
That it's not covering everylittle thing that we're thinking
about because you know youbrought up obscenities and it
made me giggle a little bitbecause of the I know it when I
see it, right?
I had to I had to teach that inAP government.
When you talked aboutincitements, can you get a
(04:14):
little bit more into what thatmeans?
SPEAKER_01 (04:17):
Right.
So effectively, the the way thatthe court has thought of, and
we'll confine it to politicalspeech for now.
Um I do want to back up though,because you said we can think of
freedom of speech as notabsolute.
The better way that I think ofit is we should think of freedom
of speech as not being allcapacious, that basically not
everything falls within it.
Rather, I and I just say thatbecause if we say it's not
absolute, that ends up basicallyturning into more of a balancing
(04:40):
test kind of an issue.
Whereas like this is superimportant or super offensive,
and that's not the way that thecourt tends to think of it.
It's instead more categories.
These are categories that arewithin that freedom and outside
that freedom.
So to your question aboutincitement, so a really, really
brief sort of summary of the waythat the courts have thought
about this.
So for much of American history,the court used a test that was
(05:03):
not very protective, and thiswas mostly lower courts, called
bad tendencies, in which speechthat had a bad tendency to cause
illegality or chaos ordisruption of the public peace
was unprotected.
Unsurprisingly, that's not avery protective standard.
And that falls away over the1920s, and the court moves
toward what's called the clearand present danger test, which
(05:27):
is sort of comes and fits andstarts, but moves basically by
the 50s is the standard they'reusing, in which they're has to
fire in a movie theater.
Nominally, yes, although thatanalogy is really bad uh for
various reasons that I think youfolks will talk about in more
detail.
I I think that's even a specificcase.
I think that's later on.
(05:47):
So I'm not going to get too intothat one.
But the court moves towardeffectively saying, no, there
has to be a pretty clear andtight connection between speech
and something illegal that'sgoing to happen or something
dangerous that's going tohappen.
And then in the 1960s, the courtreally tightens that up to say,
in a case called Brandenburg,which remains the operative test
(06:09):
today, which effectively saysthat political speech can be
restricted if it is incitingimminent lawless action.
Right.
So like we let we should go dothis thing right now, because
the court is conceptually sayingat that point it's closer to the
action itself than just saying,like, and so in that particular
(06:32):
case, it was a group of Klansmenout in a forest saying there
should be some revengeance takenagainst the U.S.
government, right?
And independent of a crimeagainst good grammar, as I like
to joke, when they're sayingrevengeance, this is not a this
is not an articulable act,right?
It'd be very different if theysaid we should all go, you know,
(06:54):
attack that government building,grab the, you know, grab your
torches and let's go do it,right?
That's incitement.
But just saying we really don'tlike the government and we wish
there would be revenge taken onit, the court says that is
closer to ideas than action.
And so incitement ends up beingbasically the framework for
(07:15):
particularly stuff that fallswithin that freedom of speech.
But that's that that'seffectively the standard that
the court wants to use.
Now, the court does similarly interms of thinking of categories,
and I think that I think thatthe conduct framework helps us
because, for example, truethreats are another thing that
the courts have held areunprotected, right?
(07:36):
I am going to kill you, right?
Like that, like that is abasically a in a way that is
different than I don't like youor you have terrible ideas or
and so again, these get reallymessy in terms of the fact
pattern of is this actually atrue threat?
Is this actually incitement?
But the conceptual framework, Ithink, is pretty clear, which is
the closer it is to conduct, theless it's protected.
(08:00):
The flag are we doing a flagburning podcast as one of the
standalones?
I can't remember.
Do I if we're doing the flagburning ones, uh, I'll give it
really short.
But right, this is a complicatedcase in which the court has
basically, you know, in theory,this isn't about, as the
dissents say in those cases,you're not necessarily
expressing an idea when you burna flag, right?
(08:21):
That they're saying, like,you're not actually saying
something.
And the majority wants to say,yeah, you are still saying
something.
You are saying that you arefundamentally disapproving of
US, the US government, USpolicy, et cetera.
And the court effectively says,if the government is passing a
law that like nobody can burnanything made out of nylon for
environmental reasons, that'sfine.
(08:42):
But the court basically buildsup kind of doctrine saying,
particularly viewpointdiscrimination, saying the
government can't say these ideaswe like and these ideas we don't
like.
So if the Boy Scouts can burn aflag reverently, then we can't
say, except those filthyhippies, can't burn the flag
irreverently.
You can either burn everythingor burn nothing because you're
(09:03):
caring about the actual actitself.
But if you're trying to suppressconduct because you're trying to
suppress the ideas, then thecourt says that's that's a
problem.
That kind of speech uh isprotected.
And there's similar things withlike there's cases on like
cross-burning, and those getreally messy in terms of the
fact patterns.
But conceptually speaking, thecourt basically wants to say if
(09:25):
the government is trying to stopyou from doing this because the
conduct itself is a problem,that's probably okay.
If they're trying to stop youbecause they don't like your
ideas or they don't like who youare as a speaker, that's the
core of what the First Amendmentis supposed to protect in those
grounds.
And I do think, so yeah,hopefully that covers uh
incitement.
Again, students then always liketo say, well, what about this?
(09:46):
If they say, like, let's go dothis in like 30 minutes or 40,
like that, that's I'm notgetting bogged down into all
that.
But the framework I think ispretty clear.
SPEAKER_00 (09:56):
So you alluded to at the beginning hate speech.
And what are the limits on hatespeech?
Because it's funny, I actuallytalked about this in my CEL 100
class.
It was brought up that hatespeech shouldn't be a thing.
And I asked the student, well,what is hate speech?
And they really had a hard timecoming up with a standard
(10:20):
definition.
So what allows the government torestrict hate speech?
SPEAKER_01 (10:29):
And the answer under the court's doctrine is nothing.
The hate speech is not acategory that the court has said
is beyond the freedom of speech,largely on the grounds that you
alluded to.
So uh there's a there's a casethat I think is actually the so
the clearest explanation of thelogic of this, even though
ironically it's in a dissent.
(10:50):
So it's a 1949 case calledTermanyello v Chicago.
And in that case, effectively,the fact pattern is really
complicated, but effectivelythere is a group of fascists in
a room in a gymnasium givinglectures that are both racist
and then also anti-communist.
So you have basically communistsoutside throwing bricks inside,
and the Nazi fascists insidecomplaining about them.
(11:13):
And the police are trying tokeep the cordon.
And eventually the cordon fails,and there's a riot, and they
charge the guy with breach ofthe peace, and he says this
violates my freedom of speech.
And the dissent wants to say,look, there's actually, even
under clear and present danger,we probably should let this
prosecution happen.
They're not prosecuting himbecause they don't like his
ideas.
They're prosecuting him becausea clear and present danger of
(11:35):
violence happened.
And how do we know that?
Because there was a literalriot.
The police were trying toprotect this guy talking.
But and that's the majoritysays, if we let basically people
say we don't like hearing whatthose fascists say, stop them.
That creates, they don't usethis phrase, but later cases do,
a heckler's veto, where someonecan say, I'm offended, you don't
get to say that.
(11:56):
And the courts increasingly havesaid, no, in fact, maybe that's
a core purpose of freedom ofspeech.
But in the term in yellow case,the dissent wants to say the
fact pattern here means weshould allow this prosecution.
But fundamentally, he's actuallycloser to the majority because
he says very striking language,like, look, speech is protected,
(12:16):
whether it's and he says, prothis religion, that religion,
pro this race, that race.
He says government does not getto basically pick what it wants
in terms of good speech and badspeech.
It basically he says there needsto be an utmost freedom of
utterance.
Courts shouldn't be turned intouh organs of popular
intolerance, effectively vetopoints.
(12:38):
But he he says it says, look, ifthe purpose of this is not to
suppress the guy's ideas,government should be able to do
it.
But he's very explicit and saysreally offensive speech ought to
be protected.
If it's and he goes through andsays basically racist, you know,
not racist, pro-ro-Catholic,anti-Catholic, pro-Protestant,
whatever, right?
He says that should beprotected.
Again, even in the dissent,which I think is interesting.
(12:59):
And we see this, this is a themethat I think we overstate the
level of disagreement on theSupreme Court in terms of the
number of cases.
Most cases are boring statutorystuff nobody cares about.
There is, I think, increasinglya disagreement in sort of
constitutional philosophy.
We'll talk more about how tointerpret the constitution
between sort of originalists andso-called non-interpretivists or
(13:23):
living constitutionalists.
But one thing that there isagreement on, and 9-0 case a few
years ago, Metal Vam lays thisout very explicitly, where they
say there is no such thing ashate speech.
This is not a concept that werecognize in law, because people
are going to say, and who's towho's to determine what counts
(13:44):
as hateful and who's going to beable to claim this is offensive?
And so everybody from Sotomayor,who I think was considered the
most progressive justice at thetime, to Clarence Thomas, who
was considered sort of the mostconservative justice, if we want
to use those labels, agree thatas I've laughed to my students,
the concurrence that's writtenby Kennedy with Sotomayor
joining, if anything, they'rearguing it should be even more
(14:06):
aggressively protected onfreedom of speech.
Now, how do I word thisdelicately?
This will not stop people fromappearing on your favorite cable
news show.
And I can think offhand ofexamples from both parties in
recent memory who have said hatespeech is unprotected, or every
knucklehead on Facebook thatsays that.
They are wrong.
There is no category of hatespeech that the court
(14:29):
recognizes.
It doesn't exist.
It is not like true threats, itis not like incitement, it is
not a thing.
The fact that someone doesn'tlike something, the courts have
held, if anything, is grounds tobe more protective of it, not
less protective of it.
Now that doesn't mean that thecourts have said that you can't
have a hate crimes legislation.
So legislate so law, but it'sdifferent, right?
(14:52):
And so that the courts havebasically said something that we
can all agree is fundamentallywrong, so say murder or
vandalism or something, right?
The thing is wrong in and ofitself.
The state can suppress that inand of itself.
The court said nine-zero case,scalia in the majority, scalia
in the opinion, if you want tosort of, you know, again, do the
(15:12):
sort of left-right thing, saysif the thing is fundamentally
already banned, you can addbasically a kicker if there's
done for a hateful reason.
So like you can add extra yearsto the penalty.
But you can't make somethingthat is fundamentally protected
unprotected because it involveshate.
And in this case, speech isfundamentally protected.
(15:33):
It doesn't suddenly becomeunprotected because uh it
involves involves sort of ideasthat some people think are
hateful.
So the Metalvi TAM case, again,about 10 years ago, I think lays
this out pretty clearly.
But I also think that thatTermaniello case from 49, Robert
Jackson's, again, ironically,the dissent, I think lays this
(15:54):
out really, really well.
That the purpose of speech isnot to suppress offensive ideas,
it's in fact to sort of promoteand protect dispute and
disagreement in the society inwhich we're supposed to argue
about things.
Civilly, ideally, but civil iscivility is not a requirement of
freedom of speech.
It's a good practice, it's onething that's prudent because
(16:16):
it's persuasive, but it is not arequirement.
SPEAKER_00 (16:20):
I'm glad that you brought up Mattel V.
Tam, because that is actuallythe case I taught in class
because it was fun to talk tothe students about, you know,
the the quick summary of thecase.
Simon Tam wanted to register hisband's name.
They were called the slants.
Simon Tam is an Asian American.
And part of his argument washe's trying to kind of take back
(16:42):
that word, right?
It was a very disparaging word.
He's trying to do that.
And the office was like, no,there's something called the
disparagement clause.
And it was really fun to talk tostudents through that because we
can't have laws that say, well,this group can do it, but this
group can't.
It's like this is kind of an allor nothing.
(17:04):
So Simon Tam trying to reclaimthis, and it was actually fun,
and this is just kind of anaside.
There, my kids were on Twitterwhile we were doing a moot
court, and Simon Tam actuallyinteracted with the students.
Oh, that's fun.
And he had the the slants have asong about this, but it it's a
good case to talk about,especially when we're talking
(17:26):
about, you know, disparagementor hate speech, because in this
scenario, Simon Tam is an AsianAmerican, and it, you know,
looking through the thearguments and things, there's a
lot of different examples ofthis.
And I I think that that one is aclassroom-friendly version, you
(17:47):
know, when you're we're tryingto talk about hate speech.
But that is, I think that's oneof my favorite Supreme Court
cases and terminello alsobecause it just lays groundwork,
right?
My students in my CEL classcouldn't come up with a
definition of hate speechbecause what is offensive to me
(18:08):
might not be offensive toanother person.
And so it's hard to come up withthat big definition of hate
speech.
And I'm glad that you brought uphate crimes, right?
Because now it's not justspeech, it's an act.
SPEAKER_01 (18:22):
Right, right, right.
And then that I think isgenerally a good way, generally
a good way to think about theexemptions, like that what that
the court and similar you canthink of this another way too,
that they're basically sayingare there ideas attached to it?
The more that there's an ideaattached to it, good or bad,
versus conduct, or in the caseof obscenity, no idea, right?
Or libel as a property damage,right?
(18:44):
It is worth flagging just acouple of other things.
I know this is probably one ofthe longer podcasts, but that I
since we only get the one, Iguess, on speech.
Again, we can be here all day,but there's a couple of other
doctrines that I want to justflag.
So one is the idea of compelledspeech, that the government
cannot make you say something,that this has basically been
held to be kind of the inverseof that.
(19:05):
Most famously, a case inBarnett.
The court is sort of dealingwith the implications of that
right now.
Again, is the interaction ofanti-discrimination law and
compelled speech doctrine issomething that's popping up in
the last in the last few years.
But, you know, there's someweird edge cases.
So if you are a governmentemployee, you obviously have
less freedom of speech.
(19:25):
You can't just say, well, I can,you know, tell my boss off and
I'm protected as freedom ofspeech.
Well, no, like if you are inprivate industry, you can't do
that.
So again, it's not exactly aone-to-one, but those cases are
complicated.
There is one set of restrictionsthat I would be remiss if we
didn't talk about, and those areso-called time, place, and
manner restrictions.
(19:46):
And in those, the courts havebasically said, again, emphasis
on you can't have viewpointdiscrimination, you can't have
speaker discrimination.
But if you want to set neutralrules, no one can run a bullhorn
at 2 a.m.
Whether this is pro-DonaldTrump, anti-Donald Trump,
pro-Joe Biden, it doesn'tmatter, right?
We want to sleep, knock it off,right?
(20:08):
So if the purpose of that islike to let people sleep, it's
fine.
You know, if if I'm running aclassroom, you don't have the
freedom of speech right to startprotesting through my classroom
and disrupting my ability to domy class.
Whether, again, whether you'reagreeing, whether you're saying
something politically I mightsupport, it is irrelevant,
right?
(20:29):
Basically, that's you know, atime or a place or a manner.
So the courts have basicallysaid as long as it's content
neutral and as long as it'sbasically actually trying to
secure some public good ratherthan suppress an idea, then
yeah, the government can dothings that sort of at the
margins restrict speech, butit's not because they want to
change the ideas, right?
(20:49):
It's or shape the idea flow orthe arguments.
It's because people need to beable to sleep.
I need to be able to teach myclass, you know, during, yeah.
So if time, manner, and placerestrictions mark affecting
speech can happen with time,manner, and place, but it has to
be fundamentally viewpoint andcontent neutral.
(21:11):
That the government isn'tbasically picking winners and
losers.
Um that's that's a doctrine thatfolks often lose, but I think is
important to remember.
SPEAKER_00 (21:18):
So I can't, we can't close a street down to do a
protest without a permit becausenow I'm just obstructing
traffic, right?
That's not impinging off myfreedom of speech.
That's a time, place, and mannerissue.
Now, if we have a permit, that'sa totally different issue.
SPEAKER_01 (21:34):
Right.
And it's sort of and itimplicates that one even
implicates sort of a conductthing as well, right?
It's one thing if you're likewalking on the sidewalk with
whatever your statement is, butif you're actually sort of
impeding other people's abilityto do their thing, then yes.
But that that's a that's anotheranother uh great uh example.
You get some fun cases.
So I think you're from Gilbert,as I recall correctly.
There was one from there a fewyears ago, which effectively was
(21:57):
can the government say thatpolitical candidates can put a
particular kind of sign up onthe street, but churches can't.
Uh and the Supreme Court struckthat down and said, Everybody
gets those kinds of signs, ornobody gets those kinds of
signs.
You don't get to say, these arethe kinds of people that we want
to have do this.
And that's uh, I will say too,maybe this is a long sort of
(22:20):
sidebar.
That's fundamentally actuallywhat the Citizens United case is
about.
It's much narrower than peoplethink that it is, but uh, it's
effectively that you're notbecause you've organized as a
particular kind of pull ofgroup, corporations effectively
don't get less ability to justcommission an ad than anybody
else does.
(22:40):
You either all get to commissionads or you don't get to.
Because the law at issue in thatcase said most people can run
ads within this time period, butthis group of people can't.
So again, it's a much narrowerkind of a case than this big
sweeping everybody has like, oh,it's about money and speech.
It's really not about that atall.
It's again, boring andtechnical.
Law, if you're doing it right,is boring and technical, not
(23:03):
fun.
So I'm not the marketing peoplefor civics in a year, so I can
say that.
SPEAKER_00 (23:07):
But uh because I disagree.
I think it's very fun to likejust dig into the words and and
really, you know, and forlisteners, Dr.
Bibert talked about Barnett'sWest Virginia versus Barnett,
and that is a Pledge ofAllegiance case.
That's compelling speechbecause, and again, this is
we're gonna do a whole episodeon Supreme Court cases and the
(23:28):
Pledge of Allegiance becausepersonally, for me, the the
fight between freedom ofreligion, freedom of speech,
being in a public schoolcompelled speech.
It's so interesting that I wantto do an episode on it because
that's what affects students inclasses.
And talking about can, I mean,speech is speech is not easy.
(23:49):
I thought the religion stuff washard and we had to do three
episodes, which we did.
And now I'm like, maybe we needmore episodes on speech because
it is it's a lot, there's a lotgoing on, and the court really
has to grapple with all of thesedifferent things going through
(24:10):
the most, I think one of themost recent ones, thinking about
the Snapchat case.
I do not have a Snapchat becausethat's just not my generation.
But you know, you have certainrights at school, they don't
stop at the schoolhouse gate,but young woman put something
that the school deemed offensiveon her Snapchat, you know, she
(24:30):
wasn't at school.
And so as technology movesfaster, it'll be interesting to
see how the court deals withspeech and how this goes kind of
moving forward.
Oh my goodness.
Now I see this this, you'reright.
We could do civics in a yearfree speech edition.
We could maybe that could be forthe Constitution's 250th.
(24:54):
Dr.
Beyenberg, thank you so much.
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