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  • Writer's pictureFred Guerin

Free Speech v. Inciting Violence

Updated: Jan 10, 2021

Trump supporters are presently lashing out at FB and Twitter for violating their 'dear leader's' constitutional right to free speech under the 1st amendment. Here is what the First Amendment reads:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances"

From a legal perspective the above amendment is a constraint on the power of government--not Twitter or Facebook. The latter are allowed to regulate their own content.

Then there is Donald Trump Jr. “We are living Orwell’s 1984. Free-speech no longer exists in America. It died with big tech and what’s left is only there for a chosen few,”. However, I have absolutely no objection to shutting down speech that incites violence, and anyone who argues that this is a slippery slope understands neither speech nor informal logic. Freedom of speech in both America and Canada is not and never has been absolute.

In Canada Freedom of Expression is a protected right under the Canadian Charter of Rights and Freedoms (Section 2) Unlike the US, Canada upholds anti-hate speech laws as well as barring speech inciting violence, murder and genocide. From a Canadian perspective you could say that hate speech just IS a form of violence. While it is clear that freedom of speech is rightly associated with democracy, speech inciting violence definitely is not. That is why even the US courts have agreed to prohibit speech that poses an imminent danger of physical violence. For the latter, inciting violence is fundamentally different than expressing an opinion, no matter how hateful.

In allowing for freedom of speech we are tacitly permitting speech that may well be unpleasant, controversial, and offensive to many. From this American perspective free speech means unfettered permission to preach racism, homophobia, anti-Semitism etc. I am no fan of hate speech, but I understand why barring hate speech on what are often very subjective grounds can easily be used to silence marginalized, critical and dissenting voices.

However, the standard for free speech in the US established by the US Supreme Court in Brandenburg v. Ohio--is that any speech advocating imminent lawless action which constitutes a clear and present danger is prohibited. That is exactly what Trump has done in the past and most recently in asking supporters to violently storm congress. So NO, Trump's free speech rights have not been violated. Period.

In fact, what Trump has done is call on on police forces and supporters to silence critics--often with violence. In Miami, Trump warned that he’d “be a little more violent” next time when addressing protesters. At a campaign rally in Las Vegas, Trump said of a protester, “I’d like to punch him in the face.” The list of examples of Trump advocating and inciting violence are too numerous to mention. The point is that if anyone can be charged with violating free speech through violent means it is Donald Trump himself.

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