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The Basics

Under U.S. law, there are very few circumstances in which the government can regulate speech based on the speaker’s point of view.  While many other countries have "hate speech" laws that prohibit speech that threatens or disparages people based on qualities such as race, gender, ethnicity, religious status, and sexual orientation, the U.S. Supreme Court has determined that this type of speech receives protection under the First Amendment, and the Court routinely strikes down such prohibitions.  The law does permit regulation of some types of threatening speech, including speech that is likely to incite immediate violence or urges listeners to take specific violent action.

If your art includes criticism or unpopular opinions about a particular group or type of person, you may want to consider the information below.  Also, every artist should keep in mind that the website or server that hosts your work may include prohibitions against certain forms of hate speech in its terms of tervice.

Inciting Violence

When your art appears to advocate violence against a specific person or group of people, a court might consider it to be “inciting violence."  Such speech is not protected by the First Amendment, and states can make laws prohibiting it.  General encouragement of violence is not typically considered “incitement,” but speech with more specific threats or calls to action may be.  Check out our section on violence to learn more.

Fighting Words

The U.S. Supreme Court has also upheld laws that regulate “fighting words” – speech that tends to immediately breach the peace, or is likely to start a fight.  Speech that counts as fighting words can include insults, threats, and derogatory slang based on personal characteristics, but is generally limited to face-to-face communication.  Because the main characteristic of fighting words is the likelihood that they will start an immediate fight, this area of law is unlikely to be applied to Internet-based speech.

International Issues

In many countries, certain types of viewpoint-based restrictions on speech are permitted.  Prior to the development of the Internet, international law was rarely a concern for artists working only in the U.S.  But now that any website can be accessed from almost any country, artists who choose to post or sell their work using the Internet should be aware of the potential issues.

Usually, a country’s government cannot enforce its laws on an individual unless that person has some kind of relationship with the country.  Some nations have successfully argued that selling a product over the Internet to a resident of that nation makes the seller subject to the nation’s laws.  Other countries have gotten judgments against U.S. citizens in their own courts, and then brought those judgments to the U.S. to be enforced.  For an illustration of how this might work, and for more discussion of international issues, see the Important Laws and Cases section.

Terms of Service

"Terms of Service" are very common on the Internet.  Every time you use a hosting site or service provider, whether you are uploading photos or video, posting your work on a blog or a website, or selling your work online, you are subject to the site or provider’s Terms of Service. 

Most of the major content-hosting websites have rules in their terms against “objectionable content,” and it’s up to them to determine what is objectionable.  They have a lot of discretion, though most content hosts use a common-sense standard to determine whether your content meets the site’s criteria.  Site operators are more likely to consider content “objectionable” and remove it if they receive multiple complaints about it, or if it clearly violates explicit site policies.

If you’re not sure whether your art complies with your host’s terms, you can try posting it anyway and allow your host to determine whether your content violates their policies.  You can also search for a content host that will not censor your content.  For more information, read our discussion of Terms of Service Violations.