This has come up on some clergy FB threads I visit. The subject at hand was "white supremacist" rallies to be held in two Tennessee cities a week from now. On FB the claim was made that hateful speech is not protected by the First Amendment. This is a common claim, usually made by those on the Left (in this case I would not say my correspondent is) because to them, hate speech is any speech that they do not agree with.
Of course, the Supreme Court ruled long ago that hateful speech is indeed protected. The decision was in Brandenburg v. Ohio, 1969, which has never been revisited in another case. In it, the Court held that inflammatory speech is protected, and interestingly for this discussion, held specifically that even speech advocating violence by members of the Ku Klux Klan is likewise protected.
The appellant, Mr. Brandenburg, was in fact a leader of a Ku Klux Klan group. He had been convicted under Ohio law for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism."
There is no doubt that Brandenburg was a hate-filled man and his speech certainly reflected that. However, the Court ruled that Brandenburg's actions and speech were protected under the First Amendment, holding that unprotected speech must meet both of:
1. being directed to inciting or producing imminent lawless action
2. and is likely to incite or produce such action.
"Imminent" has generally been understood to mean immediately at hand, or right away. That is why after Trump's inauguration when Madonna said she wanted to "blow up the White House" she suffered no consequences. It was not an "imminent" threat.
Then there was Kathy Griffin, who for some reason calls herself a comedienne:
For this photo that she posted on social media last May, along with a video, Griffin was reproved by figures around the political circle. Was this hate speech? It would be insane to argue otherwise. Was it a threat? Ask the Secret Service, which interviewed her for more than an hour (but did not arrest her).
But it did not meet the test of either imminence or likelihood, so it was protected, though repulsive, speech.
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