Regulating Speech

Free speech may not be regulated unless the government has a compelling interest in restraining the speech.

Example: Distribution of leaflets may be prohibited in dangerous high traffic areas to promote public safety. Public sidewalks in front of abortion clinics are often off-limits to protesters to ensure that a woman receives medical care. Threats against the President are illegal as are terrorist acts.

My brother was arrested for assault and a hate crime offense when he verbally confronted a minority and assaulted him. Does his arrest for a hate crime not violate his right to free speech?

No. Your bother is not being punished for his speech (whatever he said to the other person before, during and after the fight); he is being punished for his conduct. However, the crime became a hate crime because his speech is evidence that your brother chose to assault his victim because of religion, color, disability, sexual orientation, national origin or ancestry.

Sidebar: "Hate" speech cannot be regulated by laws prohibiting the display of symbols or signs that show contempt or hatred on the basis of race, color, creed or religion. For example, a city ordinance prohibiting flying a Nazi flag is unconstitutional.

My neighbor insists on flying the Confederate flag, although he knows I am descended from slaves and am highly offended. Are his actions not "fighting words" that are not protected by the First Amendment?

No. "Fighting words," as discussed below, consist of speech personally directed at an individual in order to immediately provoke him or her. Most importantly, however, "fighting words" do not convey any expression of ideas. By flying the flag, your neighbor is expressing an idea or belief, not personally abusive language.