Q: I was recently charged as a “disorderly person” after yelling out of my car window, “get off my lawn you fucking faggots,” as I passed people engaged in a protest.
Is what I said protected by the First Amendment?
A: Speech that insults someone because of race, gender or sexual orientation is understood in general parlance as “hate speech.” As a general matter, such “hate speech” is protected under the First Amendment—however, there are limited categories of speech that are not protected that might also be considered “hate speech.”
The first such category is “fighting words.” The United States Supreme Court has held that insults that are intended or likely to provide an “immediate breach of the peace” can constitute “fighting words.” When hate speech becomes “fighting words,” the person who said them can be prosecuted for a crime. The Supreme Court has also held that hate speech that creates in the victim an immediate fear of bodily harm or death constitutes a “true threat” of violence that is not protected by the First Amendment. “The speaker need not actually intended to carry out the threat” in order for the police to “‘protect[] individuals from the fear of violence’ and ‘from the disruption [of their targeted activities] that fear engenders.'” Virginia v. Black, 538 U.S. 342, 359-60 (2003).
Whether “hate speech” crosses those lines and can be treated as fighting words and/or a true threat often depends largely on the circumstances. In light of the highly publicized death of anti-bigotry protester Heather Hoyer in Charlottesville last August when an allegedneo-Nazi drove his car into the protesters (for which he has been charged with murder), the police or prosecutors in your circumstance may believe that the protesters were placed in immediate fear or bodily harm by your comments, or that those comments threatened an immediate breach of the peace. Whether a court would agree with that assessment will depend on evaluation of all the circumstances.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.