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  • Writer's pictureBrian Foley

Montgomery County Criminal Defense Attorney - Is posting a swastika like Kanye West Illegal?

Kanye West recently posted a swastika to twitter. I do not in any way support this action and condemn it from the start. This got him banned from twitter even by free speech activist Elon Musk. Certainly what Kanye did was outrageous and distasteful. But was it illegal? Can Kanye West go to jail for posting this? Well the Supreme Court of the United States may have answered this question.

If you can believe it, they approved a parade displaying swastikas in a neighborhood which had a large number of holocaust survivors in a case called National Socialist Part v. Village of Skokie. “The issue in this appeal is generally, whether plaintiff met its burden of proof for the issuance of a prior restraint on defendants' first amendment rights, and specifically whether the swastika is protected speech under the circumstances of this case.” Village of Skokie v. Nat'l Socialist Party, 51 Ill. App. 3d 279, 282 (Ill. App. Ct. 1977).

Justices Brennan, Thurgood Marshall, Blackmun, Powell, and Stevens voted in favor of the Nat'l Socialist Party's position that they had a first amendment right to demonstrate and make a political statement using a swastika in a highly Jewish city. The Justices held that the State of Illinois must provide strict procedural safeguards, including appellate review to prevent the demonstration because it involved the first amendment right to freedom of speech. “[W]e grant certiorari and reverse the Illinois Supreme Court's denial of a stay.” National Socialist Party v. Skokie, 432 U.S. 43, 44 (1977)

Right wing Justice and former Chief Justice William Rehnquist dissented from the majority opinion. I wonder what Thurgood Marshall would have to say about Ye today.

While the government cannot punish you for political speech through incarceration nor suppress political speech, a private entity like twitter has never been legally able to violate a constitutional right. Time will tell if Elon Musk's convictions on free speech include the type of symbols that were granted procedural protected by the Supreme Court in the Skokie case.


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For Ye: This wasn't necessary and you should have known better.

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