When did threatening American citizens with death become "PROTECTED" Free Speech?

[madinmaryland]

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=439&topic_id=167469&mesg_id=167469

Am I missing something? I grew up understanding that yelling "FIRE" in a movie theatre was illegal.

The Freedom of Speech does have responsibilities. The threatening of peoples lives is not a RIGHT.

[WingDinger]

1. You see, it wasnt a closed theater, it was an open scene. They can still yell outside.

:sarcasm:

[Kaleva]

2. A little bit of history behind the yelling of "Fire" in a movie theatre.

"Holmes, writing for a unanimous Court, ruled that it was illegal to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater 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."

http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater

[Davis_X_Machina]

6. That was Holmes...

...upholding restrictions on speech by anti-war leftists, by the way.

[Kaleva]

18. The restrictions on free speech cuts both ways.

Most, if not all here would argue that preventing the distribution of anti-draft leaflets was an infringement on their right to free speech but the Supreme Court at the time ruled otherwise.

[elleng]

17. Difficult subtleties presented by our Constitution.

'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.'

[kestrel91316]

3. Since 9-11, unless you were a brown furriner.

[madinmaryland]

10. Thanks. I forgot we did not live in a pre-9/11 world.

:mad:

[Rex]

4. When mega wealthy, right wingers bought a lot of American

TVEE news and started telling people liberals are a plague that needs to be wiped out. Pretty much then, whenever that all started.

[Davis_X_Machina]

5. Brandenburg v. Ohio. 1969...

... and its threefold test of intent, imminence, and likelihood. Brandenburg v. Ohio

...the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Remember that incitement statutes and the like have far, far more commonly used against alleged violent speech by the left than they ever were against the right. The history of the labor, anti-war, and civil rights movement is replete with conservatives applying such laws to muzzle legitimate protest against TPTB.

[Hugabear]

9. So it's okay to say that Liberals should be hunted down and exterminated...

...as long as you're not saying "see that Liberal over there, I want you to exterminate him right now".

Is that pretty much the gist of it?

[Davis_X_Machina]

11. Yes.

And only provided that it was likely that the imminent lawless action referred to would be likely to be carried out. A lapse of days or months -- no good. A mob of three -- no good. An unarmed crowd -- no good. (The latter suggests that the real issue is the easy availability of firearms.)

Free speech's a bitch. When you look at the long line of cases leading to the present state of play, it's leftists all the way down, in the cases leading up to Brandenburg. Schenck, Masses, Abrams, Gitlow, Whitney, Davis -- all Communists or Anarchists.

[sabrina 1]

7. It isn't.

What is being protected is a 'brand' created by the rabid right decades ago. It was intended to intimidate and abuse anyone who did not accept the view of America held by people who do not believe in democracy. They use the 1st Amendment to silence anyone who challenges them.

However, you cannot threaten elected officials, judges or for that matter, anyone, and claim protection under the 1st Amendment.

Hal Turner just found that out in August of this year after his conviction for threatening two Federal Judges.

If Palin were anyone else, a Democrat eg, and certainly a Muslim, as soon as she put up that map she would have been visited by the FBI. But SHE'S protected because is a good salesperson for the 'brand' which includes violent imagery, guns and other symbols of war. All couched in 'patriotic' language, lots of flags etc.

It would be an interesting experiment to have someone else try it, a liberal eg, putting 20 Republican candidates in the crosshairs. I think we see a whole different reaction.

[Turborama]

8. Ever since absolutists have been able to control what "incitement" means

They say they would die to protect their right to incite violence. Ironic, really.

[Davis_X_Machina]

12. The 'absolutists'...

..who decided Brandenburg included those notorious rightists William O. Douglas, William Brennan and Thurgood Marshall -- the latter, even though the defendant was a Klansman.

Per curiam decision, too -- no dissents.

[Turborama]

13. Yep, absolutists then and now. n/t

[Davis_X_Machina]

14. I think that if Justice Marshall...

...found for a defendant who said things like

"How far is the nigger going to - yeah."
"This is what we are going to do to the niggers."
"A dirty nigger."
"Send the Jews back to Israel."
"Let's give them back to the dark garden."
"Save America."
"Let's go back to constitutional betterment."
"Bury the niggers."
"We intend to do our part."
"Give us our state rights."
"Freedom for the whites."
"Nigger will have to fight for every inch he gets from now on."

...in the presence of hooded persons, some of whom were carrying firearms, we need to consider why he so found.

He obvioulsy thought he was protecting something valuable -- and it probably wasn't the Klan.

[Turborama]

15. So? He was an absolutist. Do you take offence to that term, or something?

Justice Hugo Black, renowned civil libertarian and First Amendment absolutist, filed a short concurrence indicating his agreement with Justice William O. Douglas's longer opinion and pointing out that the per curiam's reliance on Dennis was more symbolic than actual.

Justice Douglas's concurrence reflected the absolutist position that only he and Black ever fully subscribed to, namely that the phrase "no law" in the First Amendment ought to be interpreted very literally, and that all speech is immune from prosecution, regardless of the governmental interests advanced in suppressing some particular instance of speech. He briefly traced the history of the clear and present danger test, illustrating how it had been used over the years since its debut in Schenck to dismiss dozens of what Douglas viewed as legitimate First Amendment claims.

A short but interesting section of Douglas's opinion indicated that he might be open to allowing the government greater latitude in controlling speech during time of "declared war" (making clear that he was not referring to the then-current Vietnam conflict), although he only phrased that possibility in terms of doubt (as opposed to his certainty that the clear and present danger test was irreconcilable with the First Amendment during time of peace).

Douglas also pointed out the legitimate role of symbolic speech in First Amendment doctrine, using examples of a person ripping up a Bible to celebrate the abandonment of his faith or tearing a copy of the Constitution in order to protest a Supreme Court decision, and assailed the previous term's United States v. O'Brien, 391 U.S. 367 (1968), which had allowed for the prosecution of a man for burning his draft card. In all these situations, Douglas argued, an action was a vital way of conveying a certain message, and thus the action itself deserved First Amendment protection.

Finally, Douglas dealt with the classic example of a man "falsely shouting fire in a theatre and causing a panic." In order to explain why someone could be legitimately prosecuted for this, Douglas called it an example in which "speech is brigaded with action." In the view of Douglas and Black, this was probably the only sort of case in which a person could be prosecuted for speech.
http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

[Davis_X_Machina]

16. It suggests that the justice's opinion...

...is taken without consideration of the merits, in mechanical accord with some rule. That explains Black -- he was notorious on the issue, but whether Douglas was actually a first amendment absolutist is certainly an open question, and that's only two of the nine justices, most notably not including Brennan and Marshall, arguably the most liberal members of the Brandenburg court.

Even in the case of an absolutist like Black, the justice is saying "This line is very important, and is never to be crossed". If they feel compelled to draw the line there, that too suggests that they think it's an important issue -- if anything more important than their brother Justices think it is. And it behooves us to inquire why that is the case.

[Turborama]

19. Whatev. My original point about absolutists being in control of the definition of incitement stands

n/t

[Nye Bevan]

20. People hung Bush in effigy while he was president.

Do you think these people should have been arrested?

[CJCRANE]

21. Who did that?

And weren't some people arrested for wearing anti-Bush t-shirts?