Freedom of Speech by LawDog
One of the things that has been sticking in my craw recently is the tendency of folks busy deplatforming people for Wrongthink to solemnly intone: “Freedom of Speech in America has always been restricted.”
Before I get off on a roll, let me first state that I Am Not A Lawyer. I am, at best, a dilettante in the Law — but I can read. Which means that a whole bunch of other folks need to start reading, too.
They are somewhat correct. Some speech has no protection from restriction: Obscenity, child pornography, false statements, and to a lesser extent speech that is owned by others, and commercial speech.
This, however, isn’t where the deplatformers come from (I’m looking at you folks taking a thunder run at Baen’s Bar in particular), they’ve decided that “Incitement to Violence” isn’t Free Speech, as they clutch their pearls.
Fortunately, we have established Supreme Court case law on this very subject!
Let us turn our eyes, or browsers in most cases, to Brandenburg v. Ohio (1969); a fascinating case involving a Ku Klux Klan leader who invited a reporter to attend a rally he was throwing.
As one would probably expect, at said rally Brandenburg got het up and made speeches of the type you would from that bunch of numpties. Lots of threats of violence against people with differing melanin levels, some exhorting of violence towards folks of different religious ideas; and topped it off with a demand that his bunch of cockwombles march on Washington DC, and do violence upon various personages and institutions up there.
As one might expect, the law in Ohio frowned upon this and promptly hooked Mr Brandenburg up. He, of course, sued; which leads us to Brandenburg v. Ohio.
When the dust settled, the Supreme Court established a simple, three-part (two in some definitions) test called, “The Imminent Lawless Action” test. These parts are:
1) Intent to speak;
2) Imminence of Lawlessness; and
3) Likelihood of Lawlessness.
Anyone who’s unclear about the definition of “Imminent” or “Immediate” should probably pause to peruse a dictionary. We’ll wait.
So. If Sumdood gets all up in a tizzy and starts running his mush demanding that a crowd do violence now to the US Government/ Mongolian Gerbils/ Insert Your Favourite Group Here AND the crowd thinks that’s a splendiferous idea, takes up their torches, pitchforks, and gerbil sticks; and starts actively looking for the nearest Mongolian Embassy and Gerbil Ranch … well, Sumdood has a problem, because that little speech wasn’t protected free speech.
However if nobody does anything imminently or immediately in response to that speech … it’s protected speech.
And don’t yammer at me about “You can’t yell ‘Fire’ in crowded theater” — that’s Schenck v. United States (1919) which was clarified by Brandenburg, and you’re misquoting Justice Oliver Wendell Holmes, Jr anyway (the actual quote is: “[F]alsely shouting fire in a theatre and causing a panic.”)
This is generally when a lot of folks trying to debate this will crawfish back to: “But, but ‘Fighting Words!”
Sigh. Don’t. Just … don’t.
Under Chaplinksy v. New Hampshire (1942) “fighting words” requires that the words uttered “tend to incite an immediate [there’s that word again] breach of the peace”; be “directed towards the person of the hearer”; and “likely to be seen as a ‘direct personal insult'”, so unless the people being threatened was: a) present;
b) personally and directly insulted; and
c) The words [tended] incited an immediate breach of the peace …
You can’t use “fighting words” to restrict the speech.
“How,” I hear you ask, “Does this pertain to Baen’s Bar?”
Simple. If someone has been yacking about doing violence unto the Fed.gov for ten or fifteen years … it’s pretty safe to say that lawlessness is not “imminent”, and thus fails the Brandenburg test. That speech, distasteful though you may find it, is protected Free Speech.
If someone is discussing how long the Mongolian Embassies and Gerbil Ranches will last after they’re cut-off from civilization, and nobody is tooling up to cut the local ME&GR off from civilization … well, it fails Brandenburg, and is protected speech.
You may not like it, but we’re not guaranteed Freedom Of Speech We Like And Approve Of. That speech requires no guaranteed freedom.
We have Freedom of Speech for those things you don’t like or approve of.
Deal with it.