Re:MS will ban Forza players who add the confederate flag to...
by iameli on Thursday July 02, 2020 @02:03PM
(#23716131)
You're correct about the mechanism through which that could happen — if the Supreme Court decided it so, they could certainly narrow the first amendment protections for hate speech. But it's incredibly unlikely that would happen any time soon, as it would be in contradiction of many many years of free speech jurisprudence — not an expert but Brandenburg v. Ohio seems to get brought up a lot in this context.
Re:MS will ban Forza players who add the confederate flag to...
by openasocket on Thursday July 02, 2020 @03:37PM
(#23717125)
Yes and no. Yes, the supreme court is the ultimate interpreter of the constitution, and could theoretically decide that the 1st amendment does not cover hate speech. But there's so much precedent around this that it is profoundly unlikely.
If there really was the will to do it, it would be by passing a constitutional amendment. If you aren't familiar, there is a process by which the constitution can be modified, and this can be done to completely rewrite or contradict the current text. But it's a very difficult hurdle: https://en.wikipedia.org/wiki/List_of_amendments_to_the_Unit...
It seems to me that there are already plenty of laws that breach the 1st amendment if you interpret speech as absolutely any speech (e.g. death threats, libel, ...). And it is constitutional because the current interpretation of speech is narrower than "everything".
Doesn't that mean that, if there were the will to do it, free speech could be reinterpreted (by the supreme court?) to not include hate speech, thus not requiring to change the 1st amendment?