Posted by Eugene Volokh:
Anti-Defamation League Plains States Regional Director Corrects Statement on
Free Speech:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246478185
The following was, I'm told by ADL headquarters, sent today to the
Omaha World-Herald by Alan Potash, Director of the Plains States
Regional Office of the Anti-Defamation League:
When I wrote to the Omaha World-Herald and said that �free speech
does not extend to racist groups,� I misspoke. Free speech can and
should extend to such groups. However, extremist or racist speech
is not and should not be protected where it incites imminent
lawless action that is likely to occur. ADL has a long history of
defending free speech and we stand by our deep commitment to this
fundamental principle of democracy. See e.g., [1]Responding to
Extremist Speech.
I'm pleased to hear it, and I agree that speech -- whether extremist
or racist or not -- that "incites imminent lawless action that is
likely to occur" is unprotected under [2]Brandenburg v. Ohio (1969).
I'm pretty sure that very little of the speech discussed in the Omaha
World-Herald editorial to which Mr. Potash's initial statement
referred would qualify under this narrow Brandenburg exception. But if
indeed the exception is read as narrowly as the Court has read it
(see, for instance, [3]Hess v. Indiana (1973)), then I have no
disagreement with Mr. Potash's corrected position.
References
1. http://www.adl.org/20faq/20q.html
2. http://www.law.cornell.edu/supct/html/historics/USSC_CR_0395_0444_ZO.html
3. http://supreme.justia.com/us/414/105/
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