Hate speech banners should be banned from highways and rooftops
The hate-filled messages that accompany white supremacist rallies and demonstrations are typically cloaked in terms of free speech, and usually enjoy considerable First Amendment protection. But how much free speech protection do these noxious messages receive when they are made in different places?
For example, one free speech issue likely to be tested soon in the courts is whether the First Amendment protects extremist groups who seek to communicate their vile messages by hanging large banners from highway overpasses and rooftops.
According to the Anti-Defamation League, such banners are increasing at an unprecedented rate, and are now seen in at least 21 states. Most of the banners are hung by organizations connected to the alt-right, but other neo-Nazi and white nationalist groups also are responsible. Banners have been seen that proclaim, “Danger: Sharia City Ahead,” “UNJEW HUMANITY,” “Feminists Deserve the rope,” “For race and nation,” ”Americans are white. The rest must go.”
The Supreme Court’s First Amendment jurisprudence gives wide latitude to freedom of speech, especially speech in public places. The court has formulated various rules under the so-called “Time, Place, and Manner” doctrine to regulate different forms of speech in public places. These rules focus on the nature of the place where the speech is given, the form of the communication, and the attendant circumstances. The most important factor is the place — or “forum” — where the speech is communicated.
To the extent that the nature of the place dictates the amount of protection speech gets, the place with the most protection is the so-called “public forum,” which includes places that traditionally have been used for speech, such as sidewalks, streets, parks, and plazas.
So, for example, speech in the public forum such as marching, demonstrating, picketing, soliciting funds, and handing out literature has been given the broadest constitutional protection. Regulations can limit speech in the public forum based on safety, health, and aesthetic concerns as, for example, limiting the number of protesters, demarcating the precise location of the protest, restricting the time of the protest, and controlling sound amplification. Moreover, the government may not limit speech because of the content of the speech, or the viewpoint of the speaker. While speech in the public forum can be limited, it cannot be banned, even for white supremacist speech.
Whereas speech in the public forum is given broad constitutional protection, speech in other public places can be more heavily regulated, and even banned. Thus, speech on buses and subways, or in public schools, libraries, post offices, courthouses, transportation facilities, military bases, and prisons can be significantly curtailed, and even banned.
What distinguishes these public places — which the Supreme Court has labeled the “non-public forum” — is that they are places that historically have not been identified with free speech activity. And because these places are not traditional forums for speech, the government is allowed to limit and even ban speech in these places as long as the regulation is reasonable.
So, for example, it would be reasonable to ban political speech inside subway cars and buses, or demonstrations inside public schools, libraries, courthouses, prisons, and military bases.
To be sure, the line between the public and non-public forum is not always clear-cut. And the Supreme Court itself has been split on whether certain places have evolved over time to become public forums. That issue came up a few years ago when the court considered whether the terminal area in Kennedy Airport was a public forum that allowed broad speech-making. The court ruled five to four that it was not.
What about highway overpasses and rooftops? Clearly, they are non-public forums because they are places that traditionally have not been associated with speech. Assuming these places are non-public forums, the next question is whether under the Supreme Court’s test it would be reasonable for the speech-regulator to not allow banners from highway overpasses and rooftops.
Consider highway overpasses. It is not uncommon for motorists on highways to encounter banners hung from highway overpasses. One type of banner often displayed is the American flag. To be sure, the sight of the American flag hung from an overpass may be a distraction. However, one would expect a much more significant distraction if the flag was the Confederate flag. And there would probably be an even greater distraction if a banner hung from an overpass proclaimed, “Muslims and Jews Get Out of America.”
Assuming that such an incendiary banner presents a significant distraction to a motorist and a potential danger to traffic safety, would that not be a very good reason to ban the banner? Similarly, the distraction to a motorist on city streets from seeing hate speech banners hung from rooftops makes prohibiting these banners from rooftops reasonable as well.
The constitution protects the right of hate groups to display banners and signs when they engage in peaceful marches and demonstrations in places traditionally associated with free speech. But when they seek to display their messages in places not traditionally associated with free speech they cannot expect the same constitutional protection.
Hate speech by white supremacists is a byproduct of these inflammatory and divisive times. But there are ways of controlling the spread of its venom. Government regulators need to promulgate public safety ordinances to restrict in a content-neutral manner banners from non-public forums, especially highway overpasses and rooftops.
Professor Ben Gershman is one of the original faculty members at Pace Law and has taught as a visiting professor at Cornell Law School and Syracuse Law School. While in private practice he specialized in criminal defense litigation. A former prosecutor with the Manhattan District Attorney’s office for six years, he is the author of numerous articles as well as two books on prosecutorial and judicial ethics. He served for four years at the Special State Prosecutor Office investigating corruption in the judicial system.