U.S. Sen. Ben Cardin, D-Maryland, said certain types of controversial speech are not protected by First Amendment of the U.S. Constitution.
Cardin also said during a Senate hearing in December that he wants more European-style solutions – and potentially speech restrictions on social media.
“If you espouse hate, if you espouse violence, you’re not protected under the First Amendment. I think we can be more aggressive in the way that we handle that type of use of the internet,” Cardin said. “You know that Europe has done things and think we have to learn from each other.” European countries do not have blanket protections for freedom of speech and dissent outlined in the U.S. constitutions. That has allowed to European governments to restrict and sanctions some anti-government speech and groups outside of political, religious and social establishments.
The Maryland Democrat’s comments sparked renewed concerns from conservatives and free speech advocates about crackdowns on dissent and anti-government sentiments on social media and other forums.
“Our first amendment is one of the defining jewels of this country,” Cardin said. “It is NOT a free pass to spew violent rhetoric.” Cardin clarified his comments Dec. 29 saying “hateful speech” is protected under the First Amendment but doubled down on potential government restrictions online is if that speech incites violence, criminal activities or infringes on others’ rights.
“Although the First Amendment protects even hateful speech, if that speech motivates someone to commit a crime, engage in violence, or take action that infringes on someone else’s right, that speech is not protected under the First Amendment and there must be accountability,” Cardin said in a letter to Maryland constituents.
Cardin, who has served in Congress since 1987 and the Senate since 2007, also cites increases in reported anti-Semitic crimes and incidents. He also said during the hearing that there is room for crackdowns on hate speech from both the government and private sector.
The comments come as Twitter owner Elon Musk released information about the social media platforms restrictions on and banning of dissenting voices disputing the 2020 presidential election results as well as critics of COVID vaccines and pandemic-related vaccine mandates.
Some of Musk’s “Twitter files” show communications and coordination between Democratic partisans and elected officials as well as the FBI with Twitter executives in charge of potential bans and blocking posts.
There are also pushes in progressive states to restrict anti-abortion protesters and crisis pregnancy centers set up by anti-abortion advocates.
Those efforts will also face free speech questions and potential challenges. The Biden administration and FBI also continue to focus investigative resources on anti-government right-wing groups as well as those disputing the 2020 presidential election.
The Foundation for Individual Rights and Expression, a Philadelphia-based conservative group focused on civil liberties on campuses, contends the government is curtailed even in its bids to corral dissident speech including when it is accused of inciting violence.
“In Brandenburg v. Ohio (1969), the Supreme Court of the United States held the First Amendment does not protect speech that is ‘directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ Mere advocacy of lawbreaking or violence remains protected speech as long as it is not intended to and likely to provoke immediate unlawful action.,” the FIRE group said in an analysis.
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