Are racist Tweets protected under the First Amendment?

These tweets are certainly offensive. But, offensive speech is still protected under the First Amendment, no matter how strongly we may feel about it. Even hate speech is protected under the First Amendment, no matter how untasteful. However, there are several forms of speech that are not protected, and we’ll talk about three that could be involved: fighting words, incitement speech, and true threats.

Fighting words are speech directed at another person and are likely to provoke an immediate, violent response against the speaker. We don’t think this is the case here. The key details we are missing is that the tweets are not directed at another person, and there is no immediate threat of violence. No one is mentioned in the tweets, right? It could be argued that the tweets are directed at the basketball team or student body in general, but that is a bit of a stretch. Plus, the tweets are online and came to light only after the article was written. If someone said something to a particular player in person and at the game, that would be a different story. There, we would have the missing components. 

Another form of unprotected speech is incitement speech, which is speech that is meant to incite some sort of imminent lawless action. The problem we run into here is that the case that developed this definition was decided in 1969—waaaaay before Twitter came to be. This throws the “imminent” part of the definition into the unknown. Imminence usually has to be something that happens right at the moment. So how does that work with internet speech? For it to be incitement speech, a tweet must encourage an illegal or violent act that would happen reasonably soon after the Twitter posting. In this case, there would need to be some sort of fight or riot right after the tweets were posted, or reasonably after posting. Since that did not happen, we don't have incitement speech here. 

The last form of unprotected speech are true threats, which have to be directed at a particular person or group, and the person must think the speech is a serious expression of the intent to harm or kill. As is the case with fighting words, we are missing a particular person or group here. However, if someone was mentioned in the tweet, then we could have a true threat here. The use of “#Hitlerismydad,” “#kkk,” and “#lightthecross” relate to an undeniable history of violence that could make someone feel afraid. But, without specific mention of any one person or particular group, we do not have a true threat.

The journalist published these tweets without consent. Is that a violation of privacy?

By design, Twitter is meant to let its users get their thoughts out instantly to share with their followers. Tweets are public by default but users can change their accounts to private, which means these users need to manually approve every requested follower to allow them to see the user’s tweets. 

Generally, information that a person knowingly posts online and shares with the public will not have a reasonable expectation of privacy. Here, the students’ public profiles are searchable by anyone, anywhere. Claiming an invasion of privacy won’t fly here. A journalist does not need to get approval from someone to publish their name, either. The name can be as accessible as the tweet itself.

But what about private posts? A student would have a much better argument in that case, but it is important to know that state law varies on this issue. There are some cases on this topic in different states that were decided differently from each other. In New York, a court decided that no one has a reasonable expectation of privacy with private emails that reached their recipient. The emails can just be shared with other people at that point. In Michigan, material posted on a private Facebook page is generally not protected by privacy laws, and a journalist who gained access through an approved follower would not violate privacy laws by publishing that information. In California, however, a court could find that information taken from a private account could be an invasion of privacy. 

What if the journalist got the name wrong and attributed a racist tweet to someone who did not tweet it?

We could have a libel case on our hands, folks. An incorrect attribution that results in harm to someone’s reputation because it suggests the person has a certain negative trait or attitude could be grounds for a libel lawsuit. 

The students are considered private people, and libel lawsuits for private people are treated differently than those for public figures. An example of a public figure would be Kim Kardashian. Kim Kardasian has the resources and fame to fight statements that are libelous and would need to show the journalists acted with actual malice (a reckless disregard for the truth), not negligence. These students likely don’t have the same resources, so that is why we use the easier-to-meet standard of negligence, rather than the very high standard of actual malice. 

It is important for journalists to follow sound journalistic practices, have their work edited and reviewed, and verify any information they have doubts about (as well as confirming the truth, of course). If an article about racist tweets is attributing the tweets to certain people, it is certainly important for the journalist to get the name right. Journalists could send the author of the tweet a message via Twitter, email them, call them, etc., especially when it involves racist comments that can damage the reputation of someone who never said such things. Without evidence that a journalist did everything they could—i.e., was not negligent—a person suing in this situation would likely win.