This post is an old one, but the mother of the child for whom Grace’s Law is named has found the post and commented. Aaron also commented. Rather than let their comments sit on an ancient blog post with no other readers, I have made this a ‘sticky’ seen at the top of this blog for the next day.
As Aaron states in his comment, we feel compassion for all those affected by the loss of a child. On the other hand, some laws are just bad policy in the long run.
My personal opinion of hate speech laws and even hate crime laws are similar. It’s not an easy subject, but it is important if we are to avoid bullying one group of people in the name of anti-bullying.
The original post:
Content of speech can’t be restricted by the government
So Says the Supreme Court, Prof. Eugene Volokh and Michael F. Smith..
Volokh and Smith have written a amicus curiae in support of Aaron Walker’s Grace’s Law suit. Both are heavy hitters, respected by other lawyers, and on the correct side.
Aaron Walker has gone to court to get rid of Grace’s Law, a Maryland a so-called cyberbullying law, which makes it a crime to repeatedly and maliciously use a computer or smartphone to bully someone under the age of 18.
Occasionally here we discuss ‘hate speech’ and the fact that legislation which criminalizes non-libelous, non-obscene non-threats and the like are wrong-headed. I’m not in favor of actual hate speech. Links here and here.
Similarly, Aaron Walker does not want free reign to harass teenagers. I’m guessing a bit here, but I actually think Walker thinks the First Amendment matters. Walker was accused of violating Grace’s Law, but the accusation was without merit. North Carolina’s cyber-bullying law was ruled unconstitutional recently. Walker is on very solid ground here.
Volokh and Smith:
This matters because? Volokh explained in an article last year in the Washington Post:
The Supreme Court has often said that the government generally may not impose content-based speech restrictions. Content-neutral restrictions, such as evenhanded restrictions on sound amplification, on blocking traffic, and the like are often constitutional; and that extends to content-neutral restrictions aimed at promoting aesthetics, such as limits on the size and quantity of signs.
But when the government restricts speech based on its content, such restrictions are generally unconstitutional.
(I’m speaking here of restrictions that the government imposes in its capacity as regulator, and not as employer, educator, or speaker; and I’m setting aside the historically recognized content-based exceptions, such as for libel, obscenity, threats, and the like.) They can only be upheld if they are “narrowly tailored” to a “compelling government interest” — the famous “strict scrutiny” test, which is quite hard to satisfy. And this is true not just for viewpoint-based laws (e.g., “no antiwar speech” or “no racist speech”) but also for viewpoint-neutral but not content-based ones (e.g., “no advocacy by corporations or unions related to any political candidate”).
He ran me right into the weeds on that last part, but obviously obscenity, threats and libel are content restrictions, and are just fine.
WE at Dave Alexander and Company wish Aaron good luck in this fight against those who would define away our free speech rights.
The entire amicus curiae is posted here.