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Candidate Trump Offends, But Within U.S. Law

  • Mike Eckel

Controversial Republican presidential candidate Donald Trump has outraged many with his campaign comments, particularly with respect to minorities such as Mexicans and Muslims.

Controversial Republican presidential candidate Donald Trump has outraged many with his campaign comments, particularly with respect to minorities such as Mexicans and Muslims.

WASHINGTON -- Donald Trump is many things: billionaire real-estate developer; Republican presidential candidate; reality TV star; American icon.

How about a living lesson on the scope of free speech in the United States?

While on the campaign trail, the leading contender for the Republican nomination has made a habit of making fiery comments, often laced with racist or sexist overtones. But in throwing barbs -- targeting political opponents, critics, and perceived enemies of the nation, among others -- has he crossed the line of what is acceptable under free speech, and entered the realm of "hate speech"?

Trump's latest shocker came from a podium in South Carolina: Ban all Muslims from entering the United States.

"Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in jihad," he said December 7.

Trump's upstart campaign for the presidency has been punctuated by such remarks.

He has called Mexican immigrants sexual predators and murderers. He has falsely claimed that nearly all homicides of black men and women in the United States are committed by other black people. He has called for shuttering all mosques in the country. He has suggested the world would be better off if dictators such as Saddam Hussein and Muammar Qaddafi were still in power. He has said that U.S. soldiers held as prisoners of war shouldn't be considered heroes.

But despite the criticism drawn by such comments, and suggestions that they qualify as "hate speech,"few are calling for censoring or silencing Trump outright.

"That's because the question of which ideas are right and wrong are questions that, in America, are left for voters and the public to consider," said Eugene Volokh, a law professor at the University of California, Los Angeles.

"We may think that the world is a better place without Donald Trump," he said. But, "we don't trust the government to tell us who to shut up versus who not to shut up."

Stiff Penalties In EU

Many European countries, in contrast to the United States, have clear definitions of what can be considered hate speech, and strict laws in place to curtail it. In Germany, publically denying or downplaying the Holocaust and other crimes committed by the Nazi regime is considered to be "agitation of the people," and can result in a prison term of up to five years. The European Union passed similar legislation for its members in 2007.

Jamal Greene, a professor of law at Columbia Law School in New York, said the main reasons for the difference in approach to hate speech include the fact that most modern European constitutions were drawn up after World War II, in reaction to Nazi totalitarianism.

Also, he said, Europeans view their governments as having "positive obligations"-- not only to protect citizens' rights to speech and expression but also to protect rights to equality.

"Americans don't think about government in this sort of way," Greene said. "We don't think about our government as having a positive obligation."

The United States has some of the most permissive laws governing speech and similar issues, undergirded by the U.S. Constitution -- whose First Amendment lays out broad protections not only for speech and expression, but also religion, the press, and peaceful gatherings.

U.S. free-speech protections are not absolute: there are laws against the distribution of obscene material, on how a person can be libeled or slandered, on commercial speech such as that used in advertisements, and on some kinds of political speech.

The crucial dividing line rests on whether it constitutes incitement or advocacy, said Michael Glennon, a professor of international law at the Fletcher School at Tufts University outside Boston.

Calling for a ban on all Muslims, is advocacy in this understanding. Even if Trump were to call for killing Muslims -- or the opposite, if Muslims called for killing Trump -- such speech would also likely be protected," according to Glennon. That is, unless the speaker actually incited people to do it, and if the violence were imminent: a person standing in front of an angry mob and yelling "Charge!", for example.

"If speech leads to a clear and present danger of conduct, the law can validly prohibit it," Glennon said, "on the theory that it incites."

'Good' Versus 'Bad' Speech

Mere advocacy, Glennon said, allows for "good" and "bad" speech to circulate in "the marketplace of ideas," a notion that has been around since a famous Supreme Court dissent 98 years ago.

"The American theory is that the proper response to a bad idea is a good idea. The remedy for bad speech, for evil speech, is not less speech, it is more speech," he said.

Amid the din surrounding Trump's speech, there's also been growing calls to restrict how the radical Islamic State group spreads its message, using social media like Facebook to recruit followers and call supporters to join "jihad."

Those calls have been amplified by the December 2 mass shooting in California, where a heavily armed married couple gunned down 14 people and wounded 21 before being killed in a police shoot-out. The woman had pledged support to Islamic State -- also known as ISIS -- in a Facebook post.

"The general endorsement of ISIS, of (leader) Abu Bakr al-Baghdad, of course, falls into the category of mere advocacy, and there are plenty of mechanisms for penalizing people individually, socially, religiously, culturally who associate themselves with those murderous ideas," Glennon said. "But there is great danger in suppressing them because suppression in the end would conceivably lead to an even greater number of adherents."

Trump's rhetoric has angered some in Britain, with a petition now circulating calling for the government to bar him from entering -- something the government has done in the past to U.S. figures with bombastic views.

In the United States, the question is whether Тrump's fiery language will help or harm his run for the presidency. For now, with two months remaining before the election season formally begins with contests in Iowa and New Hampshire, polls show him well ahead of his Republican competitors.

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