Freedom of speech, assembly, and the press 123or resentment in others on the basis of race, color, creed, religion, or gender”? Or
is the ordinance an unconstitutional limit on First Amendment rights? The Court
said the cross burner could be punished for arson, terrorism, trespassing, or other
violations of the law, but he could not be convicted under this ordinance because
it was overly broad and vague. The Court said: “Let there be no mistake about our
belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has
sufficient means at its disposal to prevent such behavior without adding the First
Amendment to the fire.”^69 The city ordinance was unconstitutional because it took
selective aim at a disfavored message; it constituted “viewpoint discrimination.”
However, the Court has since upheld more carefully worded bans of cross burning.
Eleven years after the St. Paul case, the Court ruled that Virginia could prohibit
cross burning if there was intent to intimidate. The Court also noted that the law was
content neutral because it did not engage in viewpoint discrimination: any burning
of a cross in a threatening context was illegal.^70Speech on the Internet Internet hate speech has become increasingly
controversial in recent years. Cyberbullying through social media like Myspace,
Twitter, Facebook, and Reddit precipitated several suicides. In 2013, Facebook
cracked down on offensive content that glorified violence against women, such
as pages with headlines like “Violently Raping Your Friend Just for Laughs.”^71
Facebook’s “community standards” have a more restrictive definition of hate speech
than is allowed by the direct incitement test. While Facebook makes a distinction
between humor and serious speech, it “do[es] not permit individuals or groups to
attack others based on their race, ethnicity, national origin, religion, sex, gender,
sexual orientation, disability or medical condition.”^72 This led law professor Jeff
Rosen to conclude that “today, lawyers at Google, YouTube, Facebook, and Twitter
have more power over who can speak and who can be heard than any president, judge,
or monarch.”^73 This may sound like hyperbole, but he is right: corporations are not
restricted by the First Amendment (which, after all, says “Congress shall make no
law.. .”). So if Facebook and other social media want to restrict hate speech, they
can. Although free speech advocates are concerned about restrictions on Internet
hate speech, civil rights groups such as the Anti-Defamation League, the Leadership
Conference on Civil and Human Rights, and the National Organization for Women all
support the move.
While social media companies have great latitude in what they permit online, the
government has limited power to regulate access to social media. In 2017, the Court
struck down a North Carolina law that prohibited sex offenders from accessing or using
social media sites, saying that these sites are the “principal sources for knowing current
events, checking ads for employment, speaking and listening in the modern public
square, and otherwise exploring the vast realms of human thought and knowledge.”
Therefore, limiting access to social media would prevent the “legitimate exercise of
First Amendment rights.”^74Freedom of Assembly The right to assemble peaceably has been consistently
protected by the Supreme Court.^75 Perhaps the most famous freedom of assembly
case involved a neo-Nazi group that wanted to march in Skokie, a suburb of Chicago
that had 70,000 residents, nearly 60 percent of whom were Jewish, including many
Holocaust survivors. The village passed ordinances that effectively banned the group
from marching, arguing that residents would be so upset by the Nazi marchers that
they might become violent. But the lower courts did not accept this argument, ruling
that if “the audience is so offended by the ideas being expressed that it becomes
disorderly and attempts to silence the speaker, it is the duty of the police to attemptFull_05_APT_64431_ch04_102-147.indd 123 16/11/18 1:28 PM