U.S. heading toward criminalization of speech, warns top law professor


A Coast Guard cadet unfurls an American flag in May 2021 (U.S. Coast Guard photo)

America is moving dangerously toward the criminalization of speech, which until now has been protected by the First Amendment, even if it’s offensive, according to constitutional expert Jonathan Turley.

He’s a law professor at George Washington University, and commented recently on a case from Connecticut, where a 16-year-old student at Fairfield Warde High is accused of taking a photo of a black classmate and posting it on social media with a “racial slur.”

AP reported police arrested the student on a state hate crime charge of “ridicule on account of creed, religion, colo9r, denomination, nationality or race.”

The law already has had labeled an unconstitutional infringement on speech rights by some.

The report said it’s common for students to be disciplined by schools for offensive comments, but it’s unusual for a criminal case to erupt.

“Having racist ideas or sharing racist ideas is something that we actually protect,” Emerson Sykes, a senior staff attorney with the ACLU’s national chapter, told AP. “Even if that viewpoint is offensive, even if it’s deplorable, we don’t want the government making the call about what’s OK to say and think and what is not. But we have limitations on that right.”

Turley, in an online commentary, said it’s already a movement in Europe to criminalize speech.

He said the Connecticut law is like the “vague speech codes that we have addressed on campuses.”

But he said the case represents “is precisely the type of speech crime that I have written about for years as eviscerating free speech in Europe.”

“Free speech demands bright lines. One of the greatest threats to free speech is the chilling effect caused by ambiguous or vague standards like the one contained in this statute. Every case of an obnoxious or repugnant individual invites us to make an exception or adopt some nuanced excuse for not following our principles. The temptation is particularly great in cases like this one when defending free speech can be confused with supporting bigotry,” he said.

He continued, “Free speech often compels us to defend those who we condemn for their views or language. It is never popular to fight for the free speech rights of individuals using such vile language.”

He pointed out the case is developing just as the U.S. Supreme Court weighs the right of schools to punish students for out-of-school speech.

“We can all condemn racist speech without curtailing free speech our society. Otherwise, we will find ourselves on the same slippery slope as Europe toward criminal speech codes and censored speech,” he said.

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