American free speech advocates have consistently defended the right of individuals to engage in offensive speech, including speech which many observers might deem “hate speech.” In the wake of the riot on Capitol Hill, many critics have argued that the violence was sparked by comments made by President Trump and some of his allies, and that therefore they should be prosecuted or otherwise punished. Assuming that the violence was caused by speech, can free expression advocates support punishment for the speaker while still supporting the legal protections for “hate speech” or other offensive speech?
Short answer: Yes.
“Hate speech” laws seek to punish opinion. Punishing opinion is, and should be, forbidden. No person or group that happens to hold power at any given time should be permitted to determine what others are allowed to think. However certain narrow types of speech that go beyond mere expression of opinion can sometimes be unprotected by the First Amendment.
Why Is Hate Speech Protected?
There is no “hate speech” exception to the First Amendment; hence, there is no legal definition of what, precisely, constitutes “hate speech” in the United States. However, the International Covenant on Civil and Political Rights does have a hate speech provision (Article 20), which states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law.” As a result, many other countries have outlawed “hate speech.” Under those laws, a book by bell hooks has been confiscated in Canada for including what authorities deemed to be anti-male hate speech; Catalan protesters in Spain have been fined for burning photographs of the king of Spain; and a British citizen was convicted for exhibiting a poster after the 9/11 attacks which depicted the Twin Towers in flame and included the words, “Islam out of Britain – Protect the British People.”
As these examples make clear, “hate speech” laws permit the punishment of the mere expression of an opinion deemed offensive. That’s why such laws are unconstitutional in the United States, for the Supreme Court has repeatedly upheld that “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.”
When Is Offensive Speech NOT Protected by the First Amendment?
Speech which is merely offensive is always protected by the First Amendment. However, some types of speech which are often conflated with “hate speech,” but which go beyond expressions of opinion can, in limited circumstances, be unprotected by the First Amendment.
Let’s talk about incitement to violence and harassment.
Incitement to violence, including incitement to racial violence, is not protected by the First Amendment. This is a very narrow exception; mere advocacy of violence cannot be made criminal “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Three elements must be met: (1) the speaker must intend to cause violence, (2) he or she must intend that the violence occur immediately, and (3) the violence must be likely to occur immediately.
The distinction between incitement and “hate speech” is illustrated by the Supreme Court’s decision in Wisconsin v. Mitchell. In that case, several young Black men were discussing the movie Mississippi Burning, which is about the Civil Rights Movement. One of the men said, “Do you all feel hyped up to move on some white people?” and, when a young white boy approached, said, “You all want to fuck somebody up? There goes a white boy; go get him.” The group then assaulted the boy, and the speaker was charged with assault, plus a hate crime enhancement. Was Mr. Mitchell’s speech “hate speech”? It’s arguable. But his speech was much more than the mere expression of opinion; it was a call to immediate violence.
Harassment is distinct from “hate speech” because it goes beyond mere expression of opinion and targets a particular person for harm. The threshold for speech rising to the level of illegal harassment is generally quite high. Anti-harassment laws often refer to speech directed at a particular person, based on the victim’s race, religion, or other group characteristic, and which has the purpose or effect of substantially interfering with, for example, a student’s educational performance or creating an intimidating, hostile or offensive environment.
These exceptions to the protections of the First Amendment are very narrow, but they are well established. Civil libertarians and supporters of free expression–including protest, writing and art–can and should support the right to express hateful opinions, but can draw a clear line that no one has a right to incite a riot or to harass another person.
“The pen is mightier than the sword” were first written by novelist and playwright Edward Bulwer-Lytton in 1839, in his historical play Cardinal Richelieu.
And he is correct. It is a short sentence I have embraced most of my life, your words hold power, they hold even more power when they are truthful and righteous and when you deliver them with confidence and peace.
I think the first time I showed up at Carnegie town hall to speak about injustice in our city was in 2003 when the council voted to shut down the LOOP. Passionate citizens voiced their opinions about it. I think I talked about my opposition to street closures (which was a failed amendment). I think speech is more powerful than guns and insurrection. Freedom is FREE, Speak Out!
When I watched these anti-democratic protesters yesterday storm the US Capital based on the lies that have been fed to them by an unqualified president, one thing came to mind;
“You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?” Hillary Clinton said. “The racist, sexist, homophobic, xenophobic, Islamaphobic—you name it. And unfortunately there are people like that. And he has lifted them up.”
She said the other half of Trump’s supporters “feel that the government has let them down” and are “desperate for change.”
“Those are people we have to understand and empathize with as well,” she said.
The people who stormed the capital yesterday were not freedom loving Americans, they were deplorables.
While I don’t agree with many decisions made in DC, Pierre or at City Hall, I don’t take up arms or glorify one leader over another, I speak out.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Self-evident. Think about that. Reality is right in front of us, it is not created or manufactured.
If you want to make change, you do it with words. I have never accomplished change in this community with the sword, I have only done it with the pen. Condemn those who use lies and violence to push their agenda, only those who speak the truth under an olive branch deserve the power to transform our lives.
When I have written parodies in the past, I have been warned by friends to be careful how I label them so people know for sure that it is a parody. I didn’t find a disclaimer on their latest article;
For dealing with such unprecedented problems all at once, Mayor Paul TenHaken is KELO.com News’ “Person of the Year for 2020.”
Boy, nothing like a good laugh right away in the morning. I am curious who with the news team at KELO decided this was a good choice (names please) and who were Paul’s competitors? Not sure, but they tell us why he was named (by unnamed folks) beating out (unnamed) competitors;
Sioux Falls mayors had faced civil unrest before. Sioux Falls mayors had faced great economic uncertainty. And Sioux Falls mayors had faced a pandemic. But none of them faced all three difficult situations at the same time in the same year. Under his watch, Mayor TenHaken navigated the city through the politics of the coronavirus, which also caused a bump in the city’s usually robust economy. And he had to quell a property damaging riot that sprang from a peaceful rally in response to the murder of George Floyd in Minneapolis.
First, I will state the obvious, you know I would not agree, but secondly, It kind of sounds like issues he should be dealing with as part of a job HE wanted. Notice they never mention the several times he said he was ‘sick of it’ and ‘didn’t sign up this’. Strangely they left that out of their nomination.
But let’s break down what they said;
• Economy. I may sound old fashioned but the mayor’s job, per the charter, is to be the City Manager. He basically runs the day to day operations of the city and manages the city employees. That’s all he does (or should I say his Chief of Staff). He has very little control over the overall private economy of the city. Mind you, he could have had a major impact, he could have found an early strategy to make sure places like the packing plant and nursing homes were operating safely. He did not, which brings us to the next item.
• Covid. Sure, Paul has taken some measures over the past couple of months with pressure from business owners, citizens, medical professionals and the city council but it was too late. For the first 6-7 months this was raging in Sioux Falls he hid under his desk and took the Noem/Trump view of the virus, if we just ignore it, it will go away. While he has lead better then Noem, that leadership surely wasn’t trophy worthy.
• Civil unrest. During the riot(?) at the mall (where some middle schoolers were throwing rocks) Paul was in a bunker somewhere in a city building watching it play out on a large screen TV. While I am glad that this incident did not result in massive property damage and injuries or death, I’m not sure having the National Guard on your speed dial makes you a champion of quelling civil unrest. I was in the march earlier in the day, and later watched livestreamed on FB. It was peaceful, all over town. The lights went down and some latch key kids got bored and made a rather peaceful protest look bad. If anyone should be commended it should be the people who stood in front of the officers to protect them from rocks.
Has Paul done some good things? Sure, his administration has pushed for treating the city employees better (part of his job) and he has been a big public advocate for mentorship and health and wellbeing. But I’m sure the above mentioned stuff was a bit of a stretch.
The thing that concerns me the most about Paul and his supposed leadership is his blatant disregard for open and transparent government and his efforts in the dark rooms at city hall to totally dismantle what little is left. Is it some kind of a sick joke that the media would pick someone for this honor that HATES open government? I’m not laughing anymore.
To my surprise, but something I have been concerned about, at the beginning of the city council meeting tonight, Brekke put on the record her objection to a section of how public input is conducted.
Remember when the city council moved public input to the back of the meeting recently (a 4-5 vote with tie-breaker from person of the year Mayor TenHaken) they specifically said that members of the public could not talk about decisions that were made final by the council during the meeting.
This is a clear violation of citizens 1st Amendment rights, as Brekke pointed out in her objection it concerns prior restraint;
Definition
In First Amendment law, prior restraint is government action that prohibits speech or other expression before the speech happens.
Overview
Prior restraint typically happens in a few ways. It may be a statute or regulation that requires a speaker to acquire a permit or license before speaking. Prior restraint can also be a judicial injunction that prohibits certain speech. There is a third way–discussed below–in which the government outright prohibits a certain type of speech. Courts typically disfavor prior restraint and often find it to be unconstitutional.
Basically Brekke points out that since decisions were already made during the meeting, voted on and final, the public has a right to address them and the government (city council or mayor) cannot limit them.
Even though Brekke’s opinion is NOT alone (there are many Supreme Court rulings about this) City Attorney Kooistra vehemently opposed her and basically told her she was wrong. It surprised me, actually astonished me how little the city attorney knows about 1st Amendment rights. From the mayor’s performance during the objection, it is clear he has no clue what 1st Amendment rights are, that has been blatantly obvious for a long time, but for an attorney with a law degree that has practiced in the military and in the private sector I would think he would be aware where the Supreme Court stands on this issue.
If Mr. Kooistra really wants to try out his Constitutional chops on this one, I would love to watch him get pummeled by a free speech attorney when someone from the public challenges this when the chair tries to shut them down for this ludicrous and unconstitutional rule violation. He may just get his day in the spotlight. Well, Mr. Kooistra, you know what Andy Warhol once said, “In the future, everyone will be world-famous for 15 minutes.” Good luck.
One of the definitions of inclusive is; including a great deal, or encompassing everything concerned.
The best way to build an inclusive community is getting that community involved with local government and the best way to do that is by letting the sunshine in.
Prophet Stoneless seems to be living in some fantasy world if he thinks he can continue his hatefest towards open and transparent government while building an inclusive community. They are counter productive to each other. Either he doesn’t understand how inclusivity works, is in denial, or is just plain ignorant.
Preach about diversity and inclusiveness all you want, it just won’t work in a closed government arena.
Complaints were submitted to the Rapid City city attorney regarding common council president Laura Armstrong’s involvement in the Facebook page, Caring Businesses of Rapid City, saying her actions violate city code.
“Code of conduct two says Rapid City officials, like council members, are to refrain at all times from discrimination or the dispensation of special privileges,” said Tornow. “I don’t know how you can have any more clear violation.”
First off, if this is a violation of city code (I don’t think it is) the complainers don’t have much of a legal leg to stand on. As an elected official your 1st Amendment rights are NOT stripped from you once you become elected. Sure, some would question ethics in this matter (though I would argue she is acting ethically by supporting a mask mandate that actually helps local businesses stay open) acting unethically is NOT illegal and as we saw in Sioux Falls, you can hardly be removed from office for it.
But more importantly she has a right granted from the highest law in the country to freedom of speech and if I was her I would counter sue these clowns for making a fuss over it.
It seems though the Rapid City, City Attorney did the right thing;
After the group submitted their complaints, a media outlet requested copies. Joel Landeen, the city’s attorney, says those were provided, much like complaints released in the past.
“If we choose not to disclose, or say we cannot comment on that because it’s confidential, then it makes it look like we’re trying to hide something or are not being transparent,” said Landeen. “Their argument is that the complaints should have remained confidential. I would point out that the last two complaints against aldermen Lisa Modrick and Jerry Right. The media became aware of both of those complaints almost simultaneously with them being filed.”
Tornow says the release of the complaints violates city process and the complaints included private information such as age and address. But Landeen says no one was required to share that information as part of the complaint process.
“I don’t think that the city did anything wrong in releasing the complaints,” said Landeen. “You have to put your name on a letter to the editor, I don’t think it’s unreasonable to expect to have to put your name on a complaint. As far as some of the other information, I can understand why people are concerned but I would point out that the form that contained all this information, those were not on city forms.”
Notice the last part of the last sentence, if you file a complaint to a government body on a piece of toilet paper, guess what, that just might appear in the media. When you are so stupid to complain about an elected official who is practicing their 1st Amendment rights to keep a community safe and economically secure, and file that complaint on unofficial forms, guess what, you spill gravy on your tie.
I have often argued that code enforcement complaints in Sioux Falls filed by residents (non-city employees) should be made public to the person the complaint is being filed against. I guarantee more transparency in code enforcement would make the problem disappear quite quickly. If you have a problem with your neighbor, bake them a pie and go have a chat. If you have a problem with your city councilor, buy them a cup of coffee and go have a chat.
I applaud the Rapid City, City Attorney on how he is handling the complaints. It’s going to be fun to watch this explode in the anti-maskers faces. They wouldn’t know the constitution or civil liberty rights if it hit them over the head with a baseball bat.
But a word of advice to the city councilor involved in this Trumpist-Noem fiasco, STAY OFF OF FACEBOOK!
Of course, this is NO surprise. I predicted before they even gathered one signature if this got passed the Fun Hating elite in South Dakota would go after it in the courts.
If you read Cory’s finely written posts about it, on it’s face, I would agree with him, the case is very weak. Heck even the SD Chamber agrees. But what makes this so arrogant and a rat fink move is simple;
• Public officials are using public money to overturn a public vote.
This should even piss off the biggest of Anti-Pot folks. It seems the SD Fascist Republican Party and it’s stooges are just fine with your public vote when you are expanding gambling or electing a super majority to the legislature and constitutional offices, but when someone wants to smoke a left-handed cigarette, that’s a no no.
I have never understood why they have been okay with holding this super majority for over 4 decades (from a vote of the people) but when these actual voters want something for themselves like a minimum wage increase, corruption reform or to get rid of pay day lenders, the vote seems out of whack and misguided.
It’s something we call hypocrisy folks.
And as for legal pot, I’m afraid the only place you will probably even see a glimpse of it in our state by July 1st will be on the reservations where the tribes have been preparing for this for years.
Even if you don’t want to partake, I get it, but I still maintain these truths to be self-evident;
• People are currently using pot in our state, the arrest records show this. They will continue no matter how these challenges turn out. They mostly get it from Colorado. So why do we continue to fill the coffers of the state of Colorado when we can fill the coffers here, while freeing up millions in justice related costs? It’s fricking baffling. Just like the rats that are constantly trying to kill our fun in South Dakota. Now go to Deadwood and bet on your favorite sports team, that’ll get you high.
South Dakota has just become the most dangerous place for Covid in the Nation;
Risk factors: No statewide mask mandate – 154.5 new daily cases per 100,000 people – 58.8% of Covid tests are positive
Few governors have been more defiantly anti-mask than South Dakota Governor Kristi Noem, a Republican, whose state is the epicenter of Covid-19 spread. The Mount Rushmore state is recording a staggering 154.5 new Covid-19 cases per 100,000 people, on a rolling weekly average, according to the Harvard-Brown risk-assessment tool. Any state with over 25 new daily cases per 100,000 people is colored red on the map, which means it is considered “at a tipping point.” South Dakota’s risk level is more than 500% above that threshold, a breathtaking failure to manage the crisis.
That last sentence says it all; FAILURE. This is why it is important to support Councilor Starr and Brekke’s mask mandate and lingering ordinances on Tuesday. While I have been on the fence about masks mandates (I think it has more to do with giving private businesses the authority to kick people out who don’t want to follow their rules on private property and trespassing) I do think distancing people at bars and restaurants is important. I want to remind people, we all hope this is temporary and by next Spring a majority of Americans will be vaccinated. Your Civil Rights are not being infringed upon. If anything, if you go into a private store and refuse to wear a mask when asked to by the business, you are infringing on their property rights. And I would love for anybody to show me where in the Bill or Rights or US Constitution that you have the civil right to do what you want on private property. You absolutely don’t.
Item #6, Approval of Contracts/Agreements, Sub Items 2-3,
Option to Extend: Extending agreement for contractor to provide executive coaching services and individual assessments on as-needed basis. AND Amending original agreement to include a two day strategy and vision planning for the Innovation and Technology for the next three years.
Why is the city subcontracting with a BUSINESS executive training program for over $20K? Just go to their website, they have zero mention of training or helping governments, they help BUSINESSES and train executives for private for-profit businesses. When are elected officials going to figure out that government doesn’t run like business. I don’t pay taxes to a for-profit entity, I pay them for services.
Item #21, 2nd Reading, Another $18 Million+ towards wastewater.
I asked someone the other day in city government, ‘Where has our public works director Mark Cotter been?’ Sure, he has been quietly working from home on things, but remember how much of a public, public official the former mayor made him? Why is our Public Works director in the shadows these days? I don’t know the answer, but many people are curious.
Item #22, 2nd Reading. So we spend $250K on Covid tourism and $20K on educating people about Covid spread. Makes sense 🙁
Section 2. That the use of the unobligated fund balance of $20,000 for the 2020 health budget is authorized to fund a public health education campaign to encourage preventative measures to mitigate the spread of COVID-19.
Item #23, 1st Reading, Allowing city employees to carry over vacation time into 2021;
Any unused vacation hours remaining in an employee’s accumulated balance in excess of maximums identified above as of 12 midnight on December 31 of each year shall be forfeited, except as specifically set forth in this Code. The above-forfeiture provision shall not apply for the calendar year ending December 31, 2020.
This one would make sense if you had your employees work thru a pandemic and couldn’t travel, because they were working, but this ONLY makes sense in the private sector. The public sector has been working from home for months or not working at all, so we are going to reward them on our dime by letting them carry over ‘vacation time’? Really?! I can almost Guaran ‘F’ing’ Tee that if taxpayers knew about this and had a voice in the matter, they would say HELL NO! I have PTO I have to burn up this year, and I can guess my employer wouldn’t let me float it next year due to Covid. Rules are Rules folks, but it seems public employees don’t have to follow them. If the city council had any gnuts at all they would kill this in an 8-0 vote on 1st Reading, but it’s not their money, so it will pass.
Item #32-33, 1st Reading, Repealing the 5G Tower agreement in McKennan Park. Once again, our all knowing city attorney’s office has a monkey screwing the football and didn’t even know the names of the entities involved in the deal. Go read the documents online, it’s a laugh fest. While we want to embrace 5G technology, we have no idea who is providing that technology.
Item #34, Emergency 1st reading of business regulations.
Item #35, Emergency 1st reading of a mask mandate.
Item #36, a ‘polite’ resolution reminder from the mayor to wear a mask. I’m surprised he didn’t also ask you to eat a turkey sandwich through your mask next week. Now that’s a ONE Sioux Falls challenge I would like to see. Maybe we could livestream it on FB while reading a children’s book?
Item #37, Resolution, to add a storage freezer for a Covid vaccine. Finally some planning from the city. Probably the only item on the agenda Tuesday night that will get full support from the council. They should also purchase a microwave, I prefer my vaccine to be at least tepid.
EDITOR’S NOTE: I also want to point out that not only has our city government been derelict in their duties managing Covid, they also have been doing the same when it comes to open meetings. Besides titling agenda items to read like a Latin Mass Litany, they have been failing for months to provide citizens with hard copies of these ordinances at the meetings and not just at regular council meetings but at other public board meetings. Some would argue when you have 5 very capable council staffers that could do this, two of which make over $100K a year, that maybe it is laziness. Sure they follow the letter of the law by providing the documents online, but why doesn’t the state’s largest city do all the law commands of it? I don’t think this is because of laziness. I think this is being done intentionally and commanded by City Council Leadership (Neitzert) and the Mayor’s administration in their ‘HATEFEST’ towards open government. If that statement is untrue, prove me wrong. What sad, sad, sad individuals in their sad, sad, sad quest for power. And as for the city council staff that bows to these commands, you are sad, sad, sad public servants for not standing up to them.
I’ve always known that Paul is a gigantic hypocrite, he consistently talks out of both sides of his mouth on issues. Last night was no different. He told us he would vote against a mask mandate because he feels people should have personal freedoms but in his second tie breaking vote of the night he took the public’s right to be heard before the regular city business by putting public input at the end. So much for our personal rights and freedoms? I guess he trusts we will wear masks, but he can’t trust us when we open our mouths.
Maybe a mask mandate during public input would be good 🙂
Councilor Brekke said it best, the mayor is moving public input to the end for the simple reason that he is tired of being embarrassed about not doing anything about not only Covid, but crime, homelessness, prostitution and zoning. He has to be one of the laziest Sioux Falls Mayors I have ever seen. Unless of course he is putting up ugly 5G towers and sending $250K through the CVB to his former(?) ad agency. You know, it would easier to control the spread if you weren’t busy filling your friends pockets with tax money to promote covid tourism here . . . just saying. One has to also wonder if Paul still has a stake in his former company? While on paper he could have sold his interest, you wonder if he is still receiving mortgage payments for that interest he sold . . . ? But that is a discussion for us conspiracy theorists, I guess 🙂
I could argue it is because Paul is not suited to be a leader, unlike the Biblical leader he was named for;
You could almost argue he is more concerned about what the bible says instead of what the US Constitution has granted us, or that he knows very little about the city charter, non-partisan government or that he just isn’t that smart. All of the above I guess.
The irony is by sending public input to the end, he is setting himself up for some serious 1st Amendment litigation, he is also going to find out how much worse the statements at the end will be after the public has to sit there for a couple of hours listening to their misguided actions.
I guess one of my biggest arguments against moving public input has to do with the long negotiation that 7 of these councilors were a part of two years ago. This was the compromise, we keep it at the beginning, but you only get 3 minutes each and 30 minutes total. While I disagreed at the time, at least it stayed at the beginning. There have been a handful of us, including myself, that come quite often to chew butt, many come for other important community concerns. But it doesn’t matter. The 1st Amendment says nothing about which topics can be discussed. Roberts Rules asks for decorum, but says nothing about ripping the council and mayor a new one when they screw up, as long as we don’t break things, cuss a lot or climb over the I.L Weiderman memorial toddler fence. I can’t imagine what I.L is thinking right now from his heavenly stoop.
It seems just like our sore loser president (and yes, he did lose) Mayor Stoneless doesn’t like it when he is told he isn’t doing his job (first goal, show up and put in an 8 hour day) which I shed no tears for. You can tell he is consistently frustrated when citizens tell him where he needs to improve. He constantly grunts, snorts and sighs into his microphone when people testify. Please shut your hissy fit mic off during the meeting, it’s annoying and you sound like a big fat spoiled brat baby piglet. Oink, Oink. I have never met a piglet that wears Converse All Stars.
As for the media covering this, you get a big fat zero. There was two readings on this topic the lame stream media in Sioux Falls decided not to cover until after the vote at around 11:30 PM on a Tuesday night. Because, as I suggested, they wanted it moved. Why inform the public in advance?
Public input has been moved and our local city government will never be the same. It was a sad day yesterday in Sioux Falls for open government and it seems no one cares.
I will tell you those who voted against, or for the mandate both got it wrong. I have argued the best way to face this is a trespassing issue which is covered by the US Constitution under property rights.
If a private business asks you to leave their property because you are not following their rules, they have the right to call the police and file charges against you for trespassing. You can be arrested and charged with a crime.
I have argued it is hard to regulate mask wearing in public places, because we own these spaces. But private property owners have the right to regulate folks on their properties, it is in the Constitution.
Just like someone doesn’t have the right to kick in your front door and enter your home, citizens don’t have the right to enter your private business and disregard the rules you set forth within your business.
While this failed, it really did not. I encourage all private business owners who support masks to call 911 when someone refuses to follow your rules on your private property and charge them with trespassing. You will send a clear message. You can’t kick in my front door and crap on my rug.
The first round of the Minnesota State High School Football section playoffs began Thursday night, and in section 3AAA, Luverne knocked off Worthington 23-7.
