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Swastikas spray-painted on the door of a Colorado elementary school and on several college campuses. A rally for the president-elect of the United States featuring a "Heil Hitler" salute. A proposed registry for Muslims leading to unease and fear across communities.
Benjamin Kuperman, a professor at Oberlin College, awoke to sounds of tapping outside his home to find that a note behind his mezuzah (a small case that contains verses from the Torah, common for Jews to place on their door frames) that stated, "Gas Jews Die." A similar scenario unfolded at Harvard University, where a professor recently received a postcard stating, "Juden raus!" a phrase introduced by the Nazis that translates to mean "Jews out."
Take out the location and time stamp on the aforementioned examples, and it's easy to see why many are comparing the rise of white nationalists in the U.S. to Nazi Germany decades ago. To some, these incidents are clear-cut examples of hate speech. To others, expressing the viewpoint of the so-called white nationalist movement is a First Amendment right that should be allowed and celebrated as free speech without censorship.
The growing division between these schools of thought brings up a simple question with a complicated answer: How much intolerance should be tolerated?
Some may argue the issue was settled long ago in Brandenburg v. Ohio, the landmark U.S. Supreme Court ruling from 1969 when the court reversed the conviction of a Ku Klux Klan leader who had advocated violence. Clarence Brandenburg was charged and convicted for advocating violence under Ohio's criminal syndicalism statute in 1964 for speeches he made.
At one rally, he stated "Personally, I believe the n- should be returned to Africa, the Jew returned to Israel." He also commented, as several Klan members stood by with firearms, "We're not a revengent organization, but if our president, our Congress, our Supreme Court continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken."
Brandenburg appealed his conviction to the U.S. Supreme Court, claiming Ohio's statute violated his First Amendment rights under the U.S. Constitution. The court sided with him, issuing what is still considered today to be its most speech-protective holding. The ruling created a litmus test citing three factors when speech can be prohibited: 1) if the speech promotes imminent harm, 2) there is a high likelihood the speech will result in listeners participating in illegal action and 3) the speaker intended to incite others to participate in illegality.
The task of drawing the line in determining when speech incites others to behave is enormously complex.
The 1969 ruling came well before the digital age. We live in a time where clicks and shares spread hate and false information instantaneously across the internet.
Given the tone and tenor in society following the election of Donald Trump, I believe it is time to revisit limits on free speech.
The challenge is to determine what degree of extremist internet speech can be tolerated in the context of freedom of speech before determining that extremist speech poses a clear and present danger. Balancing is essential; the consequences of unjustified limitations of free speech are antithetical to a democracy. On the other hand, speech has the potential of harming. The adage "words kill" is neither amorphous nor abstract.
Speech must be handled with sensitivity, intelligence and honesty. When reasonable to assume speech will cause harm to others, we should prevent it. If unclear whether speech will result in harm, it must be protected; otherwise over-reach is the inevitable and problematic result.
Brandenburg must be understood to not only protect the speaker's rights, but to also ensure protection of potential targets. As has been made dramatically clear in the past weeks, there is potential danger to minority groups. They are deserving of our protection. We are living in a time when reports of hate are surfacing at an alarming rate.
This is not the type of society we should be comfortable accepting. We need a national conversation that asks: "What are the limits of tolerating hate?"
We may find in these discussions that we have already well surpassed our acceptable threshold for these limits.
Amos N. Guiora is a professor at the University of Utah S.J. Quinney College of Law. He is the author of "Crime of Complicity: The Bystander in the Holocaust" (forthcoming) and "Tolerating Intolerance: The Price of Protecting Extremism."