According to the textbook (2012), there are many rights called the First Amendment rights which are the most debated in Constitutional Law. One of these rights is the freedom of speech and expression. There are several technicalities when it comes to assessing the rights of an individual to his or her freedom of speech. One of those from the inception of the Constitution has been whether or not a person’s speech is meant to incite violence and hatred toward other individuals or groups of people. Two recent U.S. Supreme Court cases have tested the boundaries of one’s freedom to express themselves and whether or not hateful speech crosses the line between expression and the intent to incite violence. This case study will examine both of these instances and determine if they do violate freedom of speech rights or if they are hateful expressions of feelings meant to incite violence.
The first case under consideration for this analysis is Elnois v. United States (2015). This is a case where a man who was going through a difficult divorce posted violent rap lyrics on a public forum where he is quoted as saying he wants to kill his wife. Walsh (2015) states that the High Court stopped short of making any broad rulings on freedom of speech itself, but did overturn Elnois’ conviction because he claimed the lyrics he posted online were done under a fictitious rap artist name and was done quoting a famous song by artist Eminem. What this ruling says about the Justices is that violent rhetoric is still protected under the First Amendment provided it does not outright call for violent action on the part of those who received the message and agree with the originator of the statement (Hall & Feldmeier, 2012). This is one case that pushes the boundaries of the First Amendment.
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The second case that is being examined in this case study is Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. This case involves the denial of employment by one of the retail stores to a woman of Muslim faith because of the fact she would have to wear her hijab while working. Walsh (2015) argues that this is a violation of the right to employment regardless of gender, religion, etc. because of the woman’s dress requirements. The company argued that it was their right under Freedom of Speech to only hire applicants which fit with the overall corporate image. The final disposition of the case was that the store was wrong in how they denied employment to the young woman based on religious assumptions, with Justice Thomas dissenting stating that the store was only exercising its right to look for a specific corporate type of individual to work on their store and the decision was not based on religion.
With both of these cases decided by the High Court, one has to ask themselves if the decisions were fair and applicable under the First Amendment. The answer would be yes they are fair decisions because first and foremost neither represented a call to violence in their message (Hall & Feldmeier, 2012). Additionally, the case of employment denial does show that the hiring manager did show that she assumed the applicant in question was Muslim and asked a higher ranking manager about the hijab and was told to reject the applicant based on that one specific merit (Walsh, 2015). While both cases are examples of freedom of speech and expression, the fact remains that they do not cross the line because there is no action of violence as a result of either party in either case. The First Amendment continues to be a complicated issue which will continue to be debated in this country in and out of the court system.
- Hall, D. E., & Feldmeier, J. P. (2012). Constitutional law: Governmental powers and individual freedoms (2nd ed.).
- Walsh, M. (2015). High Court Rules in Online Threat, Religious Rights Cases. Education Week, 34(34), 19.
