CBA Record November-December 2023

libelous utterances are not within the area of constitutionally protected speech. The Court noted that the distribution of racist pamphlets was not an essential part of any exposition of ideas and was of such slight social value as a contribution to truth that any benefit from the communication is outweighed by the social interest in order and morality. Justice Frankfurter wrote: “There are limits to the exercise of the liberties of speech and the press. The danger in these times from coercive activities of those who, in the delusion of racial or religious conceit would incite violence and breaches of the peace to deprive others of their equal right to the exercise of their liberties, is empha sized by events familiar to all.” Although this case from 1952 is not the last word on free speech, and white supremacists, it is an eloquent statement of the foundation of our democracy. Beauharnais has not been specifically overruled, but its continued application may be eroding. Although the Seventh Circuit upheld a school rule barring students from making derogatory comments referring to race, ethnicity, religion, gender, sexual orienta tion, or disability, the Court noted that “No one thinks the First Amendment would today be interpreted to allow group defamation to be prohibited,” Nuxoll ex rel Nuxoll v. Indian Prairie Sch. District 204, 523 F.3d 668, 672 (2008). Nuxoll alleged his right of free speech was violated by forbidding him from making negative comments about homosexuality. In bal ancing balanced free speech and ordered learning, the Seventh Circuit noted that the school did not have to offer proof that its rule prevented disorder and distur

bance. It acknowledged the sensitivity of young people and the effect of derogatory comments on the learning environment. Current Free Speech Challenges In 2023, in Jacksonville, Florida, members of the white nationalist group National Socialist Florida projected Nazi symbols and anti-LGBTQ+ messages onto public buildings at night to normalize and sanitize these symbols and messaging, Olmus, S., Urquhart, J., National Public Radio , March 10, 2023. On August 27, 2023, three Black citizens were shot to death in Jacksonville by a white nationalist. The killer had Nazi symbols on the gun he used. These are not isolated incidents. The Anti-Defamation League has documented over 700 incidents of white supremacist propaganda in the last five years. As cities nationwide wrestle with how to enact laws to protect citizens without intruding on the First Amendment, the Sun Times reported that Chicago experienced a nearly 30-year high in reported hate crimes increasing more that 85% between 2021 and 2022 as reported by the Center for the Study or Hate and Extremism. Silverstein, D. Ald., Opinion: Strengthening City’s Hate Crimes Ordinance is Long Overdue, Chicago Sun Times, Sept. 22, 2023. The Constitution favors unrestrained speech. But in the narrow category excep tions of fighting words, inciting violence, defamation, obscenity, or words uttered in furtherance of a crime, speech may be restrained to protect all citizens, includ ing white nationalists and groups targeted by them. We are protected by the Con stitution and entitled to equal protection under the law. Free speech does not allow one viewpoint to stifle, threaten, or sup press another.

In March 2022, the Governor of Florida signed the Parental Rights in Education Act. This law states in the pre amble that it seeks to prohibit classroom discussion about sexual orientation or gender identity. These prohibited catego ries of speech do not fall into a narrow category that courts have recognized as unprotected speech subject to prior restraint by the government. The law is not designed to improve classroom learn ing. As passed in 2022, the Florida law applied to kindergarten through third grade but was amended to apply through grade 12, unless instruction was required by state academic standards or as part of a reproductive health course or a lesson for which a student’s parent has the option to have their student not attend. This law empowers parents to take legal action against a school district to enforce the law and makes violation a third-class felony punishable by up to five years in prison. The courts have yet to determine whether this constitutes a governmental restriction on speech based on content or viewpoint. Is it a prior restraint on speech that fails the strictest scrutiny required for such governmental action? Does it prohibit the discussion or instruction of constitutionally guaranteed rights of free people to equal protection under the law? As lawyers, we must be vigilant to keep free speech alive and condemn censorship of ideas, thoughts, and viewpoints.

Lynn Kopon, Kopon LLC, is a member of the CBA Record Editorial Board.

Forest Preserves of Cook County: The Environment, Public Access, and Equity December 6, 2023 | 12:00-1:30 PM | Live Webcast | 1.5 IL MCLE Credit Register at Learn.ChicagoBar.org.

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