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Legal issues in the Shank case
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble and to petition the Government for a redress of grievances.
? First Amendment to the Bill of Rights
What Lloyd Shank wrote in his letter to the Broward County commissioners was offensive, distasteful and anti-Semitic. But whether his words were intended or likely to produce imminent lawless action, as well as whether hate speech and anonymous speech are protected by the First Amendment, are the legal issues at stake in Shank v. State of Florida.
Speech that could incite others to lawless action
The Supreme Court did not even hear free speech cases until the early part of the 20th century, when a barrage of World War I leafleting cases. The Supreme Court eventually adopted the "clear and present danger" test to analyze First Amendment protections, first espoused in dissenting views by Justices Oliver Wendell Holmes and Louis D. Brandeis. They argued that speech is only punishable if it presents a clear and present danger of imminent harm.
This test set the tone for future rulings until Brandenburg v. Ohio (1969) established a new standard: speech can only be suppressed if it is intended and likely to produce "imminent lawless action."
The Brandenburg standard was recalled in two major Supreme Court cases: Hess v. Indiana (1973) and NAACP v. Claiborne Hardware Co. (1982). In Hess, the Court reversed the conviction of an anti-Vietnam War demonstrator who was convicted of disorderly conduct for stating, "We'll take the f--king street later." Hess had made this statement as police officers were clearing the street during a 100-150 person anti-war protest. In reversing his conviction, the Court held that Hess's words did not incite to imminent lawless action and that his words could have been taken as either advocating "present moderation" or illegal action "at some indefinite future time" ? clearly not the sort of speech intended or likely to produce imminent lawless action as outlined in Brandenburg.
In Claiborne, the Supreme Court protected the speech of NAACP leader Charles Evers. Evers, in calling for a black boycott of white-owned stores, stated that anyone who violated the boycott would be "'disciplined' by their own people" and further that "If we catch any of you going in any of them racist stores, we're gonna break your damn neck." The Court held that, although his words may have sounded like a call to violence, they were protected speech because they were the sort of advocacy that did not have intention or likelihood to produce imminent lawless action. As the Court explained, "mere advocacy of the use of force or violence does not remove speech from the protection of the First Amendment."
Finally, in Chaplinsky v. State of New Hampshire (1942), the Court made it clear that speech can be punished as "fighting words" only if it is directed at another person, typically in a face-to-face encounter. This concept has not been applied to the use of a nonverbal symbols such as swastikas, a burning crosses or peace symbols.
Hate speech
Speech attacks on race, religion, ethnicity or sexual orientation are commonly referred to as hate speech. However distasteful and offensive this sort of speech may be, there is no "hate speech" exception to the First Amendment. In its 1992 decision in R.A.V. v. St. Paul, the Supreme Court struck down as unconstitutional a city ordinance that prohibited crossburnings based on their symbolism, which the ordinance said makes many people feel "anger, alarm or resentment." Instead of prosecuting the crossburner for the content of his act, the city government could have rightfully tried him under criminal trespass and/or harassment laws.
Anonymous speech
The U.S. Supreme Court in McIntyre v. Ohio Elections Commission (1995) held that anonymity of the author is not sufficient reason to exclude him or her from First Amendment protection. In the opinion of the Court, Justice Stevens wrote:
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority.... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation ? and their ideas from suppression ? at the hand of an intolerant society.
First Amendment case law appears to strongly support Lloyd Shank's right to send an anonymous letter to the Broward commissioners.
