Podcast Summary: So to Speak: The Free Speech Podcast Episode: Ep. 227: Should there be categories of unprotected speech? Release Date: October 22, 2024 Host: Nico Perino Guests: Bob Korn Revere (FIRE Chief Counsel) and Ronnie London (FIRE General Counsel)

Introduction

In Episode 227 of So to Speak: The Free Speech Podcast, host Nico Perino engages in a profound discussion with FIRE's Chief Counsel Bob Korn Revere and General Counsel Ronnie London. The episode delves into the contentious debate surrounding categorical exceptions to free speech, questioning whether certain types of speech should be inherently unprotected under the First Amendment.

Understanding Categorical Exceptions

Ronnie London initiates the conversation by expressing discomfort with the notion of predefined categories that deem certain speech unprotected. He challenges the traditional exceptions like defamation, obscenity, true threats, and incitement, arguing that these categories might impede free expression by allowing the government to bypass nuanced First Amendment protections.

"[...] the whole idea that things can be categorically unprotected if they simply meet a particular definition is always been a little bit troubling for me."
— Ronnie London [02:50]

Historical Context of Free Speech Doctrine

Bob Korn Revere provides a historical backdrop, explaining that the Supreme Court only began recognizing First Amendment protections in the early 20th century. Initially, exceptions to free speech were broad and often oppressive, such as under the Comstock Act.

"Over time, as the Court began to develop a more refined categorical approach, it began to do what we call constitutionalizing an area of law."
— Bob Korn Revere [09:40]

He emphasizes that refining these categories has paradoxically expanded free speech protections by setting high barriers for what constitutes unprotected speech.

Obscenity: A Case for Elimination

Both Revere and London agree that the obscenity category has become increasingly narrow and problematic. They discuss the evolution from broad, oppressive definitions to the more stringent Miller Test, which assesses obscenity based on community standards, artistic value, and moral depravity.

"I think this is one of the reasons why I think this is a category we could do without."
— Bob Korn Revere [18:44]

London advocates for removing obscenity as a categorical exception, suggesting that its current application is overly restrictive and fails to account for context and intention.

Fighting Words: Nearly Obsolete

The discussion moves to the concept of "fighting words," with Revere noting their negligible presence in modern jurisprudence. Citing cases like Counterman vs. Colorado, they acknowledge that the doctrine has largely faded, leading both guests to agree that "fighting words" should be eliminated.

"You could prosecute it for incitement. Until Brandenburg, where you then have the court refining that test and constitutionalizing the area of incitement and saying that you had to have both the intent to cause immediate lawless action and the probability that your words were going to cause that immediate lawless action."
— Bob Korn Revere [31:07]

Defamation: Maintaining the Exception

Perino introduces defamation as a category with more consensus between the guests. Revere supports maintaining defamation as an exception, highlighting its role in protecting individual reputations while acknowledging the rigorous standards set by cases like New York Times v. Sullivan.

"If private parties [...] have been defamed by knowingly false statements and actually have been harmed, then the law of defamation gives them recourse."
— Bob Korn Revere [37:34]

London concurs, emphasizing the need for clear harm and intent in defamation cases, thereby supporting its status as a necessary categorical exception.

Incitement to Imminent Lawless Action: A Point of Contention

The debate intensifies around incitement to imminent lawless action. London criticizes this category, arguing that existing criminal doctrines like conspiracy and aiding and abetting sufficiently address harmful speech without needing a separate exception.

"I think I ultimately come out is [...] if you engage in speech that sufficiently contributes to lawless action, you can be said to be a conspirator or you can be said to have aided and abetted the lawless action, then we already have doctrines that cover that."
— Ronnie London [42:54]

Revere counters by asserting that categorical exceptions like incitement have actually enhanced free speech protections by setting precise standards, such as those established in Brandenburg v. Ohio.

"Having that category actually has resulted in more protection, starting with the clear and present danger test [...] and then refining that test [...] constitutionalizing the area of incitement."
— Bob Korn Revere [44:35]

True Threats: Balancing Protection and Punishment

The conversation shifts to true threats, with Revere explaining that while threatening language can cross into unprotected territory, legal thresholds require both subjective intent and objective perception of threat.

"The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence."
— Bob Korn Revere [53:45]

London agrees but emphasizes that true threats should align with existing tort principles like assault, advocating for their treatment outside of categorical speech exceptions.

"Either it's an assault or it's not."
— Nico Perino [55:05]

Challenging Misconceptions: Hate Speech and False Speech

Perino brings up commonly misunderstood categories like hate speech and false speech (e.g., fake news), pointing out that the Supreme Court has generally protected these under the First Amendment unless they fall into other exceptions like defamation or fraud.

"Hate speech isn't a thing. [...] the Supreme Court has been very clear that speech that is hateful, that doesn't fall into one of these categories is protected speech."
— Ronnie London [56:58]

Revere reinforces that without formal categorical exceptions, terms like hate speech remain protected, aligning with the Court's stance on broad free speech protections.

Conclusion: Striving for More Protected Speech

Both Revere and London express a shared vision of expanding free speech protections by eliminating or refining categorical exceptions that they view as overly restrictive or outdated. They advocate for a more nuanced approach that balances the government's interests with individual rights without relying on rigid speech categories.

"I think that is completely wrong. But it's the same way that people will say pornography is not protected because they mix it up with obscenity."
— Bob Korn Revere [58:59]

The episode concludes with a mutual agreement on reducing the scope of categorical exceptions to foster a freer and more expressive society, aligning with FIRE's mission to uphold individual rights and free expression.

Notable Quotes:

• Ronnie London [02:50]:

  "The whole idea that things can be categorically unprotected if they simply meet a particular definition is always been a little bit troubling for me."

• Bob Korn Revere [07:05]:

  "It has allowed the Court to say all speech is presumptively protected."

• Ronnie London [10:23]:

  "It's an interesting tension."

• Bob Korn Revere [18:44]:

  "I think this is one of the reasons why I think this is a category we could do without."

• Ronnie London [29:20]:

  "I have a problem with obscenity is that it relies on the temporary community standard."

• Bob Korn Revere [31:07]:

  "The Court has made increasingly clear over time that speech doesn't have to have a certain value before it's protected."

• Ronnie London [42:54]:

  "If you engage in speech that sufficiently contributes to lawless action, you can be said to be a conspirator."

• Bob Korn Revere [53:45]:

  "The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence."

• Ronnie London [56:58]:

  "Hate speech isn't a thing. It's in the ear of the beholder."

For more insights on free speech and related legal debates, subscribe to So to Speak on YouTube, Substack, or your preferred podcast platform.