PeterH, thanks.
I'm pretty hard core about the First Amendment also. But this guy pushes the limit about as far as Nazis marching through a Jewish neighborhood.
So far our society has a consensus about three limits on free speech: a) Shouting fire in a crowded theatre, i.e. speech that falsely claims an emergnecy in such a manner as to lead to a panic that itself is a danger to public safety. b) Direct threats against an individual, which are the definition of "assault" (carrying out the threat is the "battery" part), and here we extend the boundary a bit with regard to public officials, where any threat against them is taken seriously because we don't want our system of governance to be subjected to manipulation by intimidation. c) Fraud, i.e. commercial speech that is false and misleading, because this would otherwise enable criminals to essentially rob people at will.
We have a partial consensus on one more category, d) pornography or obscenity. However I find it interesting that the definition is restricted to "explicit depictions of sexual or excretory functions or activities without redeeming scientifc of other social value." I believe this should be extended to include violence according to the same rule. For example video games such as Grand Theft Auto which effectively give players a subjective "reward" sensation for committing on-screen crimes up to and including murder of police officers. (And it's especially hypocritical that Hollywood is talking about how depictions of *smoking* in the movies should be eliminiated, so as to "not encourage kids to do it," while the depiction of all manner of murder and mayhem is somehow supposed to never encourage kids to do *that*, while we have one of the highest crime rates in the industrialized world.)
And we have also a consensus on banning child pornography, but in that case there is not even a question of "speech," the issue is that children are being sexually abused to make those pictures, which is clearly abhorrent to any civilized sensibility.
The underlying basis for criminalizing the induction of mass panic (via "fire" in a crowded theatre) or the induction of lust (via pornography) is that those emotions preclude reason, preclude rational decision making on the part of individuals, and thereby cause individuals to behave in a manner that is overtly detrimental in a measurable way (e.g. stampeding the theatre, risk of injury and death; lusting after children or married people, child-molestation and adulterous breakage of families). In other words, those types of speech "push buttons" in susceptible individuals that can produce more-or-less automatic behavioral responses that are hazardous in an obvious way. The underlying basis for criminalizing "threat speech" is that it is a statement that one is willing to, or about to, harm another person: a clear and present danger to another person.
With those criteria in mind, there is a rational basis for banning hate "speech." It is clearly aimed at inducing an emotion of hate, which in turn is conducive to hazardous and detrimental behavior such as committing violent acts against the targeted individuals. As well it constitutes a form of "threat," in that its defining emotion is one that coincides with the capability *and inclination* to harm others. A person in a state of hatred or rage is as much a manifest hazard as a driver in a state of drunkenness.
So on balance, I'd have to say that hate speech could reasonably be criminalized in the same manner as "threat speech."
As well, hatred itself should be recognized as a form of chronic (long-term) psychopathology (personality disorder); and rage itself should be recognized as an acute (short-term) psychotic state (psychotic as defined by sensory distortions, ideas of reference, and loss of reality-testing). Both of these should be subject to involuntary civil commitment under the standard of "danger to self or others."
There is however a risk that the highly manipulative sociopaths such as Phelps would merely tailor their messages in such a manner as to circumvent the law, and tailor their behavior to circumvent the psychiatric diagnosis. We already see this with respect to other cases, e.g. racism, anti-Semitism, etc., which are "merely" the subject of a nearly universal social consensus of severe disapproval.
In the end, regardless of whatever legal measures are available, there's no substitute for fighting back -in a disciplined manner- whenever and wherever these creeps appear.
