Speech crimes

Criminal speech is a legal concept that identifies certain kinds of speech as a crime and outside the protection of the First Amendment. Under Constitutional law, freedom of expression includes speech and conduct such as marching, flag burning and campaign contributions.[1][2] In order for a statute that places limits on speech based on its content to be found Constitutional, it must pass strict scrutiny analysis as set forth in United States v. O’Brien (1968).[3] This rule allows for certain time, place and manner restrictions to be placed on the freedom of expression.[1]

In the United States the right to free speech is of critical importance in the Bill of Rights. Words are expressions of ideas, and allow freedom of individuality.[4] To Founding Father Thomas Jefferson, it was of the utmost importance to keep all speech free in order for the truth to emerge and to have a civil society.[5] Jefferson adopted the Lockean ideas of “inalienable rights to life, liberty, and pursuit of property” but emphasized that “man must give up some of his freedom to secure civility in the government, and if the government violates its duties then man has the power to revolt through expression.″[6]

Case law defines what constitutes criminal speech in the United States. The following are types of non-protected speech:

1. Threats – speech that “encompass(es) those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat."[7] This is similar to the concept that “true threats” are not protected under the First Amendment.
2. Incitement to Violence – set forth by the court in the case Brandenberg v. Ohio (1969). In this case, the Court found that the First Amendment did “not permit a State to forbid or proscribe advocacy ... except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[8] The speaker must have intended for incitement to result. This overruled the previously held "clear and present danger" test in Schenck v. United States (1919).[9] The incitement to violence test is usually used when questioning the legal validity of hate speech.
3. Defamation – as set forth in New York Times v. Sullivan (1964), occurs when one publishes material, claiming its validity, that harms or maligns one’s character or reputation. An actual malice requirement must be proven for a public official to seek damages as a result of defamation. When defamation is in written word, it is called libel; when spoken, it is slander.
4. Obscenity – speech that meets the following criteria is considered obscene and can result in criminal sanctions if any of the following are true:[10]

(a) 'the average person, applying contemporary community standards' would find that the work, taken as a whole appeals to the prurient interest;

(b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;

(c) the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

The German Criminal Code expands punishment from civil liability to criminal punishment and imprisonment if Articles 130 and 131 are violated. These articles ban hate speech ("Hassrede", legal term: Volksverhetzung).

Under Article 130, hate speech is criminalized if it could lead to incitement of violence, referring specifically to speech or writings that insult human dignity. Punishment is three to five months imprisonment. This is the code that criminalizes Holocaust denial.[13]

Article 131 extends punishment to those who disseminate, post publicly, or show to youth, renditions of senseless violence or violence that is deemed inhuman.[14]