Attacking Brandenburg with History: Does the Long-Term Harm of Biased Speech Justify a Criminal Statute Suppressing It?

Abstract

Racist speech has long been the subject of significant controversy in First Amendment jurisprudence and scholarly commentary. In a recent book, Alexander Tsesis argues that, when systematically developed over long periods of time, "hate speech" lays the foundation for harmful social movements that ultimately result in the oppression and persecution of "outgroups." From this premise, Tsesis argues that the United States Supreme Court should overrule Brandenburg v. Ohio, the case in which the Court held that advocacy or incitement must be likely to result in imminent harm before it can be constitutionally proscribed. Tsesis's book then proposes a model statute to criminalize "hate speech" based on the long-term harm such speech can cause. In this Essay, I question the book's premise and its conclusion. My principal argument is that Tsesis misunderstands one of the underlying bases of the "imminent harm" requirement in Brandenburg. Rather than being premised on a view that speech cannot cause long-term harm, Brandenburg's "imminent harm" requirement is designed primarily as a prophylactic rule to prevent government from using a long-term harm rationale to suppress speech based on the government's view of truth. To support a law criminalizing speech, therefore, it is not enough to rely on the long-term harm that the speech can cause.