The Racist Text Attack Raises New Questions About the First Amendment in the Digital Age

​You probably had the same reaction we did to the story late last week that someone had sent racist text messages to the phones of African-Americans in at least 19 states: We hope they find the SOB.
 
Identifying the troll who blasted out text messages to thousands of Americans telling them to be ready to “pick cotton” would be satisfying. The troll could expect public shaming, likely loss of employment, business boycotts, social ostracism, as well as civil lawsuits. Many of the victims of this text attack did not understand that this was a mass event, not specifically aimed at them. Some were children. The texts caused some to understandably fear for their personal safety. So this was not an ugly prank. It was an attack on Americans’ sense of well-being.
 
All true. But was the message itself a crime?
 
Probably not. In a landmark decision, Brandenburg v. Ohio, the U.S. Supreme Court in 1969 found that the speech of the Klu Klux Klan, as odious as it was, could not be outlawed. The Court found that only speech that is “directed at inciting or producing imminent lawless action” could be deemed illegal. Otherwise, the First Amendment protects hate speech.
 
In every report of the text message we’ve read, there was no imminent threat of lawless action. And yet this text message managed to insult many Americans to the core and disturb the psyche of the nation. This attack – and others that are sure to follow – force us to ask if the Brandenburg standard needs revision. After all, the numbers of Americans exposed to the Klan’s ugly rhetoric in a park in Ohio was tiny. With the reach of digital technology, this message slapped thousands of Americans in the face. Amplified by social and traditional media, it then reached most Americans.
 
Thus, digital technology takes the speech of the marginal and the weird and gives it a national bullhorn.
 
Critics of the Brandenburg standard argue that if you demonize a racial or religious group before millions of people, you might egg on a few unstable individuals to commit acts of violence. This is not a theoretical concern. Consider the hate behind the slaughter that occurred at the Tree of Life Synagogue in Pittsburgh in 2018, or the killing of 10 Black customers at a Buffalo grocery store in 2023. The killer, at his sentencing, expressed remorse and said: “I believed what I read online and acted out of hate.”
 
Defenders of the Brandenburg standard point out that other countries that have hate laws have widened the circle of forbidden speech to an absurd extent. Governments have prosecuted people for soberly criticizing religious dogmas as narrow-minded. Others have prosecuted people for expressing traditional beliefs on sexual behavior advocated by all the world’s major religions.
 
As a First Amendment organization, we take a maximalist position on speech – holding that the antidote to bad speech is more speech. But we also acknowledge that digital amplification raises new questions about heightened risks. So far, we have more questions and concerns than answers. We invite you to follow us as we explore the tension between speech and safety more deeply in the coming year.

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