Thinking of burning the American flag? Taking a knee during the anthem? Viciously verbally assaulting others?

If so, is any of this hate speech? Do you have a right to any of these under the First Amendment to the Constitution? Does everyone you run into in person or via social media seem to think they are a constitutional scholar? As an attorney, are you sufficiently up to speed to advise your clients?

Join a genuine constitutional expert for insights into these and other thorny concepts and practical tips so you will be ready to address questions of protected speech that arise in your practice.

Dr. Michael Arnheim is Barrister at Law, Sometime Fellow of St.John’s College, Cambridge, and author of 20 books, including the U.S. Constitution for Dummies, now in its 2nd edition. Lately, Arnheim has been increasingly approached by universities, political organizations and minority groups to share his insights on the legal status of “hate speech.” When we learned this we jumped at the opportunity to produce an insightful and practical webinar series titled:

Dr. Michael Arnheim on the U.S. Constitution: Fact & Fiction

With the first installment on Dec. 11, 2018:

What is hate speech?
Is it protected by the First Amendment?

Some of the questions Dr. Arnheim will address will be familiar, but the answers may be elusive to many, even those who have practiced law for years.

Is flag-burning a form of hate speech? And is it protected under the First Amendment? In Texas v. Johnson (1989) and U.S. v. Eichman (1990) the Supreme Court ruled that it was protected speech. But there are moves afoot in Congress to outlaw it. Would any such legislation be unconstitutional?

What about professional athletes who take a knee during the playing of the national anthem?  Could that be classed as hate speech?  Justice Ruth Bader Ginsburg described the kneeling as “dumb and disrespectful,” but added that the players have the right to protest in that way “if they want to be stupid.” Can employers discipline players in these circumstances?

What about verbal attacks? In Snyder v. Phelps (2011) the Supreme Court upheld the right of picketers to launch what Justice Alito (dissenting) described as a “vicious verbal assault” on a gay U.S. Marine killed in the Iraq War. Recently retired Justice John Paul Stevens commented that he would have joined Alito’s “powerful dissent.”

What if people will be offended? Can a guest speaker who is likely to offend certain groups be banned from a university campus? This is already happening. But what is the legal position?

What about “speech codes”? Can refusal by university students and faculty to use gender-neutral pronouns be branded as hate speech and be punished accordingly? In the 1980s and 1990s more than 350 universities adopted speech codes, which have mostly been overturned by the courts as violations of the First Amendment, as in Corry v. Stanford (1995).

Can “racially disparaging” trademarks be banned? In Matal v. Tam the U.S. Supreme Court said no, and in the process struck down a clause of the Lanham (Trademark) Act of 1946.

Will we continue to protect “the thought that we hate”? The present position of the U.S. Supreme Court is that it must protect “the thought that we hate” — positions we might adamantly disagree with – but that has not always been its view. Indeed, that phrase comes from Justice Oliver Wendell Holmes’s dissenting opinion in U.S. v. Schwimmer (1929): “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.” Are there any signs that Schwimmer may be resuscitated?    

When does hate speech become a hate crime?  The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, named for two men who were murdered, one because he was gay and the other because he was black, was supported by 31 state Attorneys General and was eventually passed by Congress and signed into law by President Obama in October 2009.  Opponents of the law, notably former Senator Jim DeMint of South Carolina, claimed that it violated the 14th Amendment and would be a step closer to the prosecution of “thought crimes.”  However, most crimes prosecuted under the Act have involved violence.

What you will learn:

(a)  The meaning of “hate speech.”

(b)  Its practical relevance to the First Amendment.

(c)  Its practical relevance to the Fourteenth Amendment.

(d)  Its practical relevance to affirmative action.

(e)  Its practical relevance to libel/defamation and also to pornography.

Michael Thomas Walter Arnheim (also known as “Doctor Mike”) is a practicing London Barrister, Sometime Fellow of St John’s College, Cambridge, and author. He has written 20 published books to date, including most recently The God Book and Two Models of Government. Previously published books include The Handbook of Human Rights LawPrinciples of the Common LawThe U.S. Constitution for Dummies and The Problem with Human Rights Law.

Read more about him on Wikipedia.