Politico asked some First Amendment experts about Mitt Romney’s call for Iranian President Mahmoud Ahmadinejad to be indicted for incitement to genocide:
Prominent First Amendment attorney Floyd Abrams said that, in his view, Ahmadinejad’s comments met the international standard for incitement to genocide under the Genocide Convention — which the U.S. is a signatory to. But are they First Amendment protected?
"While the First Amendment does not protect certain forms of incitement to criminal conduct, I do not believe what Ahmadinejad has said would be deemed unprotected speech if judged by First Amendment standards. Put another way, what he said would be protected speech here," Abrams wrote in an email responding to a query from POLITICO.
Lawrence Walters, another First Amendment attorney, agreed — especially on the point of Holocaust denial.
"Holocaust denial is almost certainly protected speech. There are some countries, like Germany, that restrict speech relating to Nazism or Holocaust denial. But that kind of restriction would never pass constitutional muster in the U.S," Walters emailed.
"That said, some of the calls for genocide of the Jewish people, and wiping Israel off the map may be actionable, as true threats. It is doubtful that this would be prosecuted in the U.S., but international courts may view the rhetoric differently," he said.