Does Brandenburg v. Ohio still hold in the social media era? Racist (and other) online hate speech and the First Amendment

Abstract

First Amendment protections for hate speech, before and after the advent of the Internet, have been the subject of various court cases. This study presents the results of a content analysis of tweets using racist, anti-Semitic, anti-Islamic and homophobic language. Tweet content is considered using a framework from prior court cases: does a tweet constitute political speech; contribute to the marketplace of ideas; encourage violence or include threats? The results show that messages of hate can be communicated without using overly offensive words; and that Twitter users discuss who should vs. should not use a word. Study findings are considered in the context of the U.S. having become more divided politically, and social media’s role in amplifying racists’ messaging.