- The Washington Times - Tuesday, December 6, 2016

An Israeli-American law professor and author says it’s time to revisit America’s free speech laws in light of Donald Trump’s election victory and the rise of “internet hate.”

Amos N. Guiora, a law professor at the University of Utah, penned an op-ed Saturday for The Salt Lake Tribune titled, “In this age of internet hate, it’s time to revisit limits on free speech,” first highlighted by The College Fix.

In it he argued in favor of revisiting the the Supreme Court’s landmark free speech decision in Brandenburg v. Ohio.

“The ruling created a litmus test citing three factors when speech can be prohibited,” he wrote. “1) if the speech promotes imminent harm, 2) there is a high likelihood the speech will result in listeners participating in illegal action and 3) the speaker intended to incite others to participate in illegality.

“The task of drawing the line in determining when speech incites others to behave is enormously complex,” he argued. “The 1969 ruling came well before the digital age. We live in a time where clicks and shares spread hate and false information instantaneously across the internet.

Mr. Guiora said a new First Amendment conversation is needed because of Donald Trump and the “tone and tenor” of our society since he was elected president. He said the challenge is determining what degree of extremist internet speech should be tolerated.

“Balancing is essential; the consequences of unjustified limitations of free speech are antithetical to a democracy. On the other hand, speech has the potential of harming. The adage ‘words kill’ is neither amorphous nor abstract,” he argued. “Speech must be handled with sensitivity, intelligence and honesty. When reasonable to assume speech will cause harm to others, we should prevent it. If unclear whether speech will result in harm, it must be protected; otherwise over-reach is the inevitable and problematic result.

“Brandenburg must be understood to not only protect the speaker’s rights, but to also ensure protection of potential targets,” he wrote. “We are living in a time when reports of hate are surfacing at an alarming rate. This is not the type of society we should be comfortable accepting. We need a national conversation that asks: “What are the limits of tolerating hate?” We may find in these discussions that we have already well surpassed our acceptable threshold for these limits.”

Mr. Guiora, who served for 19 years in the Israel Defense Forces, is the author of the upcoming book “Crime of Complicity: The Bystander in the Holocaust.”

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