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U.S. Elections 2020: Where and How Can We Draw a Constitutionally Permissible Line on Inflammatory Political Rhetoric?

Political candidates running for public office have long exploited popular fears, racial anxieties and other divisions as an electoral strategy. Increasingly, and most recently, this has led to socially oppressed groups’ claims that some political rhetoric is so inflammatory that it impermissibly inspires violence against community members.

During the 2016 U.S. elections, for example, then-candidate Donald Trump launched his presidential campaign by characterizing Mexican immigrants as “rapists,” and “criminals.” Afterward, two brothers attacked a homeless Latino man in Boston, MA. One of the attackers stated that he was inspired by Mr. Trump’s immigration rhetoric. Just a few months ago, President Trump asked an audience at a rally how they would stop migrants from attempting to enter this country. When a supporter responded “Shoot them,” the President smiled and failed to offer any appropriate corrective. For many in the Latinx community, the El Paso mass shooting targeting “Mexicans” on Aug. 3 was a natural progression from inflammatory speech by national leaders to xenophobic violence.

They are not alone in that sentiment. The NAACP, for instance, has attributed the continued rise in anti-Black hate crimes to political rhetoric and racist policies. Muslim Americans and Jewish compatriots have previously shared similar concerns as well. Beyond these group claims, journalists have also complained that hateful speech demonizing them has incited physical assaults and threats. In fact, according to Gallup, 58% of Americans now blame recent mass shootings on inflammatory political rhetoric by prominent politicians or political commentators. 

Significantly, the First Amendment Doctrine provides robust protections for free expression. More speech is legally preferred as the response to negative speech. Ultimately, the most truthful, meritorious claims should prevail in the marketplace of ideas. In Whitney v. California, for example, Justice Louis Brandeis, in his famous explication of this principle, wrote, "[I]f there be a time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."

But, the current sociopolitical context forces some difficult questions: Realistically speaking, does the Counter-Speech Doctrine empower socially disadvantaged groups to effectively respond to the odious speech of powerful figures that demonizes their religious, racial and/or ethnic identity? What, if any, role do news media outlets play in facilitating the Counter-Speech Doctrine, amplifying marginalized voices and equalizing the playing field? Should social media technology giants shut down - or at a minimum, temporarily suspend - accounts engaging in hateful rhetoric? Where can we draw a Constitutionally acceptable line on hateful political speech in a pluralistic democratic society that values peaceful co-existence among different racial, ethnic, and religious groups as well as freedom of expression? Our experts discuss these and allied questions.



  • Engy Abdelkader, Chair, Rights of Immigrants Committee, ABA Section of Civil Rights and Social Justice

Co-Sponsors: ABA Center for Public Interest Law, ABA Commission on Immigration, ABA Criminal Justice Section, ABA Government and Public Sector Lawyers Division, ABA International Law Section


Hate Speech Bans, Democracy, and Political Legitimacy
Courtesy of James Weinstein

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