During the summer of 2016, Facebook was under fire by the German government for failing to disclose information that could have helped prevent terror attacks. Terrorists often use Facebook and other social media to plan attacks and to communicate with fellow terrorists. However, social media sites do not always turn this information over to authorities. This brings up the question of whether threatening to carry out a terror attack or another violent act is protected by the first amendment.
Words that incite violence or place the targets in harm’s way are known as fighting words. The court case that established the status of fighting words in regard to the first amendment is called Chaplinsky vs New Hampshire. In 1940, Walter Chaplinsky, a devout Jehovah’s Witness, was distributing religious texts and speaking publicly when a group of people objected. The group went to James Bowering, the city marshall, with their complaints. Bowering told the group that Chaplinsky was acting lawfully. After Bowering left, the mob proceeded to beat Chaplinsky. Chaplinsky then went to the police station and, upon seeing Bowering, called him a “God damned racketeer” and a “damned fascist.” He was then arrested. Chaplinsky brought his case up the levels of the court system, losing each time. Eventually he reached the supreme court. Justice Frank Murphy wrote the decision saying:
“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words — those which by their utterance inflict injury or tend to incite an immediate breach of the peace.”
Thus withholding Chaplinsky’s conviction and creating the “Fighting Words Doctrine.”¹
This decision has never been overridden and is still cited in many state court cases. So the question is: does the fighting words doctrine apply to comments and discussions on social media. A big part of this discussion is whether social media figures are responsible for the violence of their audiences if that violence is a result of something they said or posted online. One such incident is the Terry Jones incident. In 2010, a pastor from Florida posted on social media that his congregation would hold a Quran burning ceremony on september 11 of that year. His post gained widespread media coverage and pleas from many government officials including president Obama and secretary of state Clinton to not go ahead with the ceremony. They claimed that it would result in protests and violence in the Middle East. Jones postponed the ceremony, but carried it out six months later and posted it to Facebook. The post resulted in widespread protests in the Middle East and 30 deaths.² This incident appears to clearly fit into the Fighting Words Doctrine which states that words unprotected by the 1st amendment include “those [words] which by their utterance inflict injury or tend to incite an immediate breach of the peace.” Jones was obviously aware that his actions would result in violence, yet he carried them out anyway. His actions and words directly resulted in a breach in the peace and thus should not be protected by the first amendment.
In conclusion, the speech of terrorists on Facebook should not be protected by the First Amendment. The speech led to immediate breach of the peace and could influence others to commit similar acts.
1 Hudson, David L. Fighting Words Case Still Making Waves in First Amendment Jurisprudence. http://www.newseuminstitute.org, March 9, 2012. Web.
2 Lidsky, Lyrissa B. Incendiary Speech and Social Media. University of Florida Levin College of Law, January 1, 2012. Web.