> Is that not a rather pernicious idea? That I may or may not be punished based on how the recipient of my speech "feels"?
I'd consider this more the issue of "consequences". If you think that your speech should be entirely consequence-free, then I completely disagree with you (c.f. shouting "fire" in a crowded cinema). It's not like there's typically any confusion around what "hate speech" sounds like.
> Why can't the rallies be permitted while policing the violence if and when it erupts?
That would be one way to deal with issues, but I'd liken it to a doctor that only treats symptoms and never pre-emptive medication (e.g. medication to lower high blood pressure, but not providing exercise/diet advice that could prevent it). There's also the issue of allowing the extremely dangerous types that motivate crowds to go and commit violence whilst never involving themselves - that would seem like a recipe for disaster.
In the US this example derives from Justice Holmes dicta in Schenck v. US:
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. ... The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."
The background of this case is that Charles Schenck and others were distributing leaflets urging the resistance to the military draft during WW1. The Supreme Court upheld this conviction. This case was later overturned in Brandenburg v. Ohio which set a new standard, imminent lawless action, as a limit on free speech.
So strictly speaking what you said is protected. You can absolutely have a play where a character shouts "fire" during the course of the script with a full theater watching. If someone knowingly shouted "fire" with the intent of causing a panic then that can venture into unprotected speech.
Hate speech, in the US, is not a thing that exists in the legal landscape. This has been tested in the courts numerous times, e.g. Snyder v. Phelps, Virginia v. Black, R.A.V. v. City of St. Paul, etc. It's important to note that in the US hate crime laws are a thing and while speech is quite nearly unlimited, actions are not.
The issue I see with those advocating for hate speech laws is that their time horizon for its use is too short. All governments throughout history have gone through phases from formation to internal civil strife to revolutions and ultimately the death of the government itself. While hate speech laws can limit hateful rhetoric in the short term - from the perspective of supporters - the long term application of these laws can take on a completely different goal as societies evolve over time. I would rather suffer hateful rhetoric with some limits at the extremes - imminent lawless action - than entrust the government with such a power over long time spans.
The theatre thing ought to be contingent on harm being done as a result of yelling "fire". This is a natural consequence and there isn't a law against the speech itself because none is needed.
Otherwise it's the same as the "consequences" of disappearing because you criticised the government.
> The theatre thing ought to be contingent on harm being done as a result of yelling "fire". This is a natural consequence and there isn't a law against the speech itself because none is needed.
I don't follow you - what law would be used to prosecute someone that maliciously yelled "fire" in a crowded cinema? As I understand it, the injuries sustained by people would not be attributable directly to the person yelling, but would just be indirect.
Similarly, a person inciting violence amongst a crowd wouldn't be directly responsible for the violence, but would be indirectly responsible. There's a clear need for a law to prevent that kind of harmful behaviour.
I'd consider this more the issue of "consequences". If you think that your speech should be entirely consequence-free, then I completely disagree with you (c.f. shouting "fire" in a crowded cinema). It's not like there's typically any confusion around what "hate speech" sounds like.
> Why can't the rallies be permitted while policing the violence if and when it erupts?
That would be one way to deal with issues, but I'd liken it to a doctor that only treats symptoms and never pre-emptive medication (e.g. medication to lower high blood pressure, but not providing exercise/diet advice that could prevent it). There's also the issue of allowing the extremely dangerous types that motivate crowds to go and commit violence whilst never involving themselves - that would seem like a recipe for disaster.