Rhetorical hyperbole protects free speech

  Rhetorical hyperbole is a concept important to the protection of free speech under the First Amendment. Many benefit from the principle, including protestors, sportswriters, editorialists and even the President of the United States.

  When the United States Supreme Court created the true threat doctrine in Watts v. United States (1969), the Court emphasized that care must be taken to ensure that in the pursuit of punishing true threats, the government doesn’t infringe on protected speech. The Court determined that a young African-American protestor named Robert Watts engaged in “political hyperbole” when he criticized the draft by saying that “the first person he would put in his scope is L.B.J” referring to President Lyndon Baines Johnson. In other words, the Supreme Court recognized that Mr. Watts engaged in “political hyperbole” rather than uttering a true threat.

  The U.S. Supreme Court has employed rhetorical hyperbole to hold that heated and emotional rhetoric receives free-speech protection rather than be deemed to be defamatory. For example, the Supreme Court ruled in Letters Carrier v. Austin (1974) that labor members did not defame non-union members when they referred to them as “scabs” in a company newsletter. The Court characterized the use of the term “scab” as “a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join.”

  More recently, a federal district court reasoned that President Donald Trump engaged in rhetorical hyperbole “normally associated with politics and political discourse in the United States” when he tweeted about comments made by Stephanie Clifford, who allegedly engaged in an intimate relationship with Trump in 2006 and faced threats from an unknown man to leave Trump alone in 2011. Clifford worked with a sketch artist to produce a picture of this unknown man after Trump was elected president.

  President Trump tweeted: “A sketch years later about a nonexistent man. A total con job, playing the Fake News Media for Fools (but they know)!” A federal district court dismissed the defamation suit in Clifford v. Trump, finding that the President’s emotionally charged language was hyperbole, not defamation.

  These court decisions recognize that speech must receive breathing space to ensure vigorous public debate and discourse. Oftentimes speech can be insulting or offensive but not cross the line into narrow, unprotected categories of speech like true threats or defamation.

  Rhetorical hyperbole must receive free-speech protection in a free society.

  About the author: David L. Hudson, Jr., a Visiting Associate Professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Documents Decoded: Freedom of Speech (ABC-CLIO, 2017).

  This article was published by the Freedom Forum Institute.