Trump’s hateful rhetoric and First Amendment failures: Re-envisioning incitement, true threats, and hate speech

Abstract

ABSTRACT Donald Trump’s hate-filled rhetoric while in office emphasizes long-existing shortcomings of free speech doctrine dealing with various forms of threatening speech. More so, because of his elected position during those speech moments, his speech elevates those concerns to a new level. His disregard for civil discourse has opened the door for a new speech behavior in national politics, one where inciteful, threatening or hateful speech is used more frequently and, as such, is becoming more socially acceptable. Each of those speech moments invokes claims of First Amendment protection. All of them were unimaginable topics 50 years ago and yet, from a legal perspective, all were or would be judged today using principles and legal doctrines crystalized in the 1950s and 1960s. Clearly, these are different times but what, if anything, does that mean for claims to free speech protections? This paper maintains that the answer to the problems inherent in current First Amendment treatment of hate-filled political speech involves two actions. First, the pre-existing doctrines of incitement and true threats need to be updated to make them applicable to current communication formats. Second, the courts must consider the addition of a constitutional category of hate speech.