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"The Hill" features Law Professor Bennett Gershman's opinion piece "Hate speech banners should be banned from highways and rooftops"
"The Hill" features Law Professor Bennett Gershman's opinion piece "Hate speech banners should be banned from highways and rooftops"
Professor Ben Gershman is one of the original faculty members at Pace Law and has taught as a visiting professor at Cornell Law School and Syracuse Law School. While in private practice he specialized in criminal defense litigation. A former prosecutor with the Manhattan District Attorney’s office for six years, he is the author of numerous articles as well as two books on prosecutorial and judicial ethics. He served for four years at the Special State Prosecutor Office investigating corruption in the judicial system.
The hate-filled messages that accompany white supremacist rallies and demonstrations are typically cloaked in terms of free speech, and usually enjoy considerable First Amendment protection. But how much free speech protection do these noxious messages receive when they are made in different places?
For example, one free speech issue likely to be tested soon in the courts is whether the First Amendment protects extremist groups who seek to communicate their vile messages by hanging large banners from highway overpasses and rooftops.
According to the Anti-Defamation League, such banners are increasing at an unprecedented rate, and are now seen in at least 21 states. Most of the banners are hung by organizations connected to the alt-right, but other neo-Nazi and white nationalist groups also are responsible. Banners have been seen that proclaim, “Danger: Sharia City Ahead,” “UNJEW HUMANITY,” “Feminists Deserve the rope,” “For race and nation,” ”Americans are white. The rest must go.”
The Supreme Court’s First Amendment jurisprudence gives wide latitude to freedom of speech, especially speech in public places. The court has formulated various rules under the so-called “Time, Place, and Manner” doctrine to regulate different forms of speech in public places. These rules focus on the nature of the place where the speech is given, the form of the communication, and the attendant circumstances. The most important factor is the place — or “forum” — where the speech is communicated.
To the extent that the nature of the place dictates the amount of protection speech gets, the place with the most protection is the so-called “public forum,” which includes places that traditionally have been used for speech, such as sidewalks, streets, parks, and plazas.
So, for example, speech in the public forum such as marching, demonstrating, picketing, soliciting funds, and handing out literature has been given the broadest constitutional protection. Regulations can limit speech in the public forum based on safety, health, and aesthetic concerns as, for example, limiting the number of protesters, demarcating the precise location of the protest, restricting the time of the protest, and controlling sound amplification. Moreover, the government may not limit speech because of the content of the speech, or the viewpoint of the speaker. While speech in the public forum can be limited, it cannot be banned, even for white supremacist speech.
Read the full article.
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