Freedom of Speech by LawDog

Posted on by Sarah A. Hoyt

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.”
Eeh.

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.
So.

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.

LawDog

307 thoughts on “Freedom of Speech by LawDog”

  2. “Freedom of Speech in America has always been restricted.”

    A major part of America’s history consists of desperate attempts to interpret the Constitution to mean anything but its plain meaning.

    Doesn’t make it a valid excuse.

    1. Much “Constitutional Law” seems to be efforts to redefine or subvert the Constitution’s plain meaning…

      1. “Precedent” means “we accept our predecessor’s flimsy rationale for abusing power as the foundation upon which we will erect even flimsier rationales for abusing power”.

        Even so, it’s downright odd that laughable leftist precedents are considered sacrosanct, while conservative precedents well established in law and history are always open to negotiation.
        For certain values of “odd”.

        1. Was it Chris Matthews who, days after the passage of Obamacare, was arguing that it was established law and that therefore all right thinking conservatives should be supporting it, because that’s what conservatism was all about? Sometimes it’s like the left is a parody of itself.

          1. People keep getting confused about the “common use” meaning of “conservative” and “conservative” as applied to politics. These days the left is often more conservative in common terms, because they control so much and want to “conserve” it. And yet leftists go around using whichever definition of the term is convenient to them at the time. Like they do for all language.

    2. Sadly, the Founding Fathers wrote and ratified one of the most radical and libertarian legal documents in human history…and then, being human, started trying to weasel around it before the ink dried.

  3. And here LD was talking yesterday about how his rant was likely incoherent and rambling…
    Very well put..

    1. I could have done better. Sigh. And left out “gerbil ranches” — I’m sure some gerbil rancher will be cross at me for that one.

      2. Mongolian gerbil ranchers (the gerbils being Mongolian, not the ranchers) are probably not known for their aggression. Probably. I think you’re safe.

        And happy birthday. Not that every day shouldn’t be a happy one, if you can manage it. But special occasions being what they are, sometimes you can get away with things on a birthday you can’t the other 364 days of the year.

        I make no suggestions as to what things one might conceivably “get away” with on a birthday for reasons of personal health. You never know who might be reading this blog…

        2. But the Mogolian Gerbils they’re vicious. Just look at them and those HUGE pointy teeth, they’ve got a vicious streak a mile wide I tell you.

        4. The Mongolian gerbil rancher must gather his clan of stock every mating season for the fabled Mongolian Cluster #$_&.

          I’m told politicians fondly compare those roundups to the passage of laws because of the similarity.*

          *To the voters, anyway.

        5. Mongolians are ALWAYS known for their aggression. Uncle Chengis said so. 🙂
          John in Indy

      3. Ranchers of Mongolian gerbils, given the conditions known to be extant on those ranches, have little basis for complaint. Their tiy little branding irons cause unmeasurable pain to the gerbils, and the cattle hamsters used to manage the herds are known ferocious fiends.

        Let he who has never sheered a gerbil cast the first sunflower seed, however.
        ~

  5. If it should happen that the party of people who own firearms, shoot firearms, buy up ammunition for the shooting in said firearms in bulk quantities (when it is available, and somewhat reasonably priced) should, say, march on the United States Capital for a rally in support of the duly elected president, and should a few of said protesters then *ahem* “invade and occupy the capitol,” as I heard it, that they should do so armed with bubble gum and cell phones and not said legally owned weapons, and should they stay within the velvet ropes, excepting some opposing forces that hid within said group, then the whole narrative falls apart.

    Same sort thing with Baen’s Bar. If there was imminent violence and tomfoolery to be done, were there not ample reasons and opportunities during the whole ’08-16 fiasco? My memory ain’t *that* bad yet. There were, I assure you.

    1. I am sure all here are comforted by news that the House Judiciary subcommittee on Crime, Terrorism and Homeland Security will hold a hearing today on Domestic Terrorism, run by subcommittee chair Sheila Jackson Lee (D-Crazycakes), so we know it will be fair.

      House committee holds domestic terror hearing in wake of Capitol riot
      … Scheduled witnesses include: Wade Henderson, interim president and CEO of The Leadership Conference on Civil and Human Rights; Michael German, of the Brennan Center for Justice; Malcolm Nance, founder and executive director of the Terror Asymmetrics Project; and conservative journalist Andy Ngo, editor-at-large of The Post Millennial.

      [SNIP]

      The siege left five people dead, including US Capitol Police Officer Brian Sicknick, who was bludgeoned with a fire extinguisher.

      [SNIP]

      … [A]uthorities have also zeroed in on failures by law-enforcement to properly prepare for the unrest despite ample warnings on social media that the chaos was coming.

      Those lapses were a primary focus on Tuesday’s hearing, which saw testimony from the now-former Capitol Police chief, Steve Sund, and the sergeants-at-arms of the Senate and House, as well as acting Washington, DC, Metropolitan Police Chief Robert Contee and Capitol Police Capt. Carneysha Mendoza.
      ~

      1. “including US Capitol Police Officer Brian Sicknick, who was bludgeoned with a fire extinguisher”

        It’s absolutely impossible to get them to stop using a useful lie, isn’t it?

        1. I think that French dude, Juicy Smolliette or something finally got dropped for being a big fat liar that everyone could tell was a big fat liar. Of course, you could argue that the usefulness had passed in his case.

          Otherwise, the “Hand up, don’t shoot!” and “I can’t breathe!” misleading nonsense is still going strong, just not as important now that there’s a D in the White House. Nominally. Which in this case just stands for “Dumb.”

          1. Technically he couldn’t breathe. But was more from opioids than the cops, although there are issues with that method of restraint possibly after him and gardner.

            1. well, technically, the feeling of not being able to breathe is a symptom of OD for one of the things he took. Also, he started saying that before the police even touched him.

                1. We’ve all had feelings of impending doom for many months now :). Yet another reason to take care of health…

          1. Sheila Jackson Lee’s stranglehold on her district is unexplainable. A few years ago, I saw a graphic that some 70 or 80 percent of her campaign financing came not just out of district, but out of state. Arab money was inferred.

            Some pretty decent Democrats have run against her, and they get no traction. She isn’t as smart as a rock, and Hillary Clinton is more honest. Nevertheless, Sheila is a lock for as long as she chooses to be in Congress.

            1. After the recent unpleasantness, inquiring minds want to know: does the lock come from control of the voting process?

  6. But but… What About Hate Speech? [Sarcastic Grin]

    Of course, in spite of the idiot countries that “define” Hate Speech in their Laws, what Hate Speech really means “I don’t like that so SHUT UP.” 😈

    1. Actually the Supremes have ruled on Hate Speech and have said that it’s perfectly fine for you to hate whomever you damn well please. Wish I could remember the case and cite, it’s from over 50 years ago I’m fairly certain.

      1. There are a pair of cases from 1973 or there aboutish, (Cohen and one other) which involved Vietnam War protests which included things like flag burning and clothing that said “f–k the flag” over the American Flag. The Court held that same were protected speech under the First Amendment (one of the opinions was by conservative Justice John Harlan).

        Democrats are perfectly fine with flag burnings, obscenity, calls to violence and indeed outright violence as long as it is done in pursuit of leftist causes. Their problem isn’t with “hate speech”, its with speech that they hate. It is speech they don’t like they seek to ban. Thoughtcrime and its expression shall not be permitted.

        2. I believe you are thinking of Cohen v. California, 403 U.S. 15 (1971): He wore a jacket with “Fuck the draft” written on it. John Harlan wrote the majority opinion and has this great quote within it: “For while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”

          This case was used as the basis for a 1977 case National Socialist Party of America v. Village of Skokie in which it was deteremined that it was legal to hold a Nazi march and display swastikas as the offense itself is irrelevent to the law.

          1. Depends on the flag. Try burning or waving a rainbow flag, and you get decidedly different reactions.

    2. Offensive speech, like the Coppers in the UK were on about the other day.
      Guess they were right, because so many people were offended by their little speeching it got removed right quick. So if I find everything uttered by the leftoids, they automatically have to shut their yap, right?

      2. And that is the Biggest Problem with “Hate Speech”.

        Their “Hateful Speech” is OK but whatever we say must be banned.

        2. For the same reason that German pro-war propaganda was banned and U.S. protest propaganda was protected.

          It is perfectly legitimate. The U.S. Constitution does not protect foreign enemies of the United States during wartime.

          Which is *us*

          The fact that we don’t think – or act as if – that is true of “not-us” is an interesting phenomen

      1. At least until Democrats pack the Supreme Court and overrule all of the cases that protect free speech so that they can ban speech they don’t like.,

          1. At one point I thought that maybe the way that Kavanaugh and Barrett were attacked by the left would make them even more receptive to conservative positions. But it actually seems to have had the opposite effect. It looks to me like they are deathly afraid of getting attacked again. And all of the riots and other in your face attacks have made any nominally right wing public personality afraid. So the left is winning that part of the war.

              1. I think on something like free speech though, they will hold firm, particularly as they would be upholding established precedent that in many ways. Free speech cases don;t have the same “political question” aspect that has historically gotten some conservative justices to defer to Congress and the executive in some cases.

                1. Also, Roberts is not going to vote to overturn or limit his own majority opinion from the more recent Citizens United case.

              2. I think they just want to preserve the 9 justice court, so if they go along to get along with the communist conspiracy team there’s no need to pack the court, and maybe the horse will learn to sing.

                Though clearly for the interpretive-dance-theory-of-the-TRUE-constitutional-meaning justices, FICUS and the GA Senate seats ARE the horse learning to sing.

                1. if they go along to get along with the communist conspiracy team there’s no need to pack the court

                  A double edged sword, as the only reason to fear court packing was the enemy getting a rubber stamp from the court on everything.

                  1. Sure, but I can see several convincing themselves that they have a 1 of 9 vote that they can reserve for when it really matters by voting with the commie bloc for now, vs. voting the way they know they should now and ending up with a 1 of 11 (or 1 of 21 – who knows?) vote with much less sway.

                    The thing is, you cannot time a market, nor can you know at the time what is the pivotal case on which you should finally use your hoarded valuable constitutionalist vote.

                    1. And re packing, in line with my comment below, note that if Congress can today decide that the supreme court consists of eleven justices to additionally appoint bozo the clown and bubbles the mime, they can subsequently decide on a supreme court of three justices and determine which ones they will keep.

                      What goes around comes around.

                    3. Re reducing the Court; actually because the Constitution does grant lifetime appointments to Supreme Court Justices, unless impeached, they can keep their seat for life, and they cannot be removed by reducing the number of Justices. Any reduction in the number of justices would take place through time, as Justices die or retire.

                    4. If they had more control in the Senate, they could reduce the numbers by impeachment & removal from office.

                      I don’t remember if any Supreme Court Judges have been removed that way but lesser Federal Judges have been removed that way.

                    5. impeachment requires a two-thirds vote of Senators present.

                      Not seated, present.

                      If one were to hold the vote on a given day, and then consider impeachment of excess justices, all you need is a reliable platoon or three in battle-rattle, a tiltrotor idling out front, and maybe a couple of pieces of armor for persuasion when getting your guys into the building: Pack up N Senators for a leisurely air tour of northern Virginia and offshore environs, where N is the number of no-voters you need to miss the vote, and Bob’s your Uncle. If your guy or gal is installed over at the WH you can even have him or her pardon everyone as soon as the vote is complete.

                      Instant Imperator.

                    8. Instant boogaloo?

                      Put that to the tune of Just a gigolo and you may have something.

                      Penicillin will probably clear it up.
                      ~

                    9. Followed by instant boogaloo.

                      Yeah, everyone forgets the Imperator appellation was something the Legions bestowed – and the various civil wars happened when the army was of a divided opinion.

                      But also note the Gauis Iulius precedent, where he worked very hard to be the populist favorite, was opposed bitterly by the establishment, and only in power because of where he marched his army.

                      But if what used to be the US devolved to the point of the military deciding on who was in the WH, multiple boogages would be an inbuilt assumption, just as with most changes of Imperator in Rome.

                      And given even now the US is not Rome, Sulla would be a better match for our first one than Gaius Iulius.

              3. I’m starting to think that when someone becomes a judge, they must first have their spine surgically removed.

                Makes bending over less of a chore.

                1. Not all: See U.S. District Judge Roger Benitez. His latest order on the CA “AW” ban is a good read:

                  https://www.courtlistener.com/docket/16069141/46/miller-v-becerra/

                  Benitez has also written a very solid constitutionalist opinion on the standard cap mag ban in CA striking it down, which striking down a 3-judge panel of the 9th circus has since upheld (by 2 to 1). The CA AG has filed for an en-banc rehearing, and that can take forever, but a bunch of 9th vacancies were filled by President Trump and confirmed by the Senate, so a stupid 9th ruling is no longer as sure a thing as it was previously.

                2. While I disagree with Teddy Roosevelt on many matters, I must credit his phrase-manship, as demonstrated in this condemnation of Supreme Court justice Oliver Wendell Holmes Jr. (TR’s first appointee to the Supreme Court):

                  “I could carve out of a banana a judge with more backbone than that.”
                  ~

            2. The problem with being a conservative, especially a conservative judge, is that you follow the rules and the precedent even when the results are something you don’t like. You do it because over the long term those rules and precedent do far more good than harm.

              Now, I don’t know the specifics of the recent election cases, but I can easily see a set of circumstances where the decisions were in fact the correct ones. If the Pennsylvania legislature said that Electors would be chosen by popular vote but left the decisions on how to administer that vote to the Secretary of State then Texas has no standing to challenge the internal dealings of another state. If the changes for the 2020 election applied only because of the pandemic then any case challenging those changes is in fact moot since the changes have essentially reverted.

              I think several Justices just want to see 2020 be over and done with and they don’t want to establish any precedent based on it. As they say, hard cases make bad law.

              1. I think the dissents over the Court’s refusal to hear the cases superbly stated the reason why the Court should have taken the cases. Further, those dissents clearly showed why what those states did was wrong and is expressly prohibited by the Constitution.

                1. Dissenters: “The Constitution!”

                  Majority: “Ink on a page!”
                  ———————————
                  Mollari: “Mass drivers have been outlawed by all civilized planets!”

                  Refa: “These are uncivilized times.”

                  Mollari: “We have treaties!”

                  Refa: “Ink on a page!”

                  1. Elric : As I look at you, Ambasador Mollari, I see a great hand reaching out of the stars. The hand is your hand. And I hear sound; the sounds of billions of people calling your name.

                    Mollari : My followers?

                    Elric : Your victims.

                  2. Lord Refa: Oh, Londo. You are a fool. You walked away from the greatest power I have ever seen. And now you expect me to do the same? They are the key to my eventual rise to the throne. Why would I abandon them?

                    Londo Mollari: Because I have asked you. (Refa laughs) And because your loyalty to our people should be greater than your ambition. (Refa laughs again) And because I have poisoned your drink.

                2. This. Which is why I would love it if it really were a matter of standing, etc, but I don’t actually believe it. I think they were afraid. And I certainly agree that they want 2020 to be over. In addition to being afraid of the reaction of the terroristic left, I believe that they are afraid that if the election fraud were actually proven, that things would grow even more chaotic.

                  Would people demand that Biden step down? Certainly the Democrats would never agree. So they’re willing to screw over the half of the country that didn’t benefit from the cheating in order to preserve the “peace”. I think they were afraid of a civil war and the reason they betrayed us was because some of them decided it was the best of a number of a bad choices.

                  I think they were wrong.

                  1. Covering up the truth, or leaving it covered up, is never the right course. At least half the country knows how crooked that election was, and the Supreme Court has now demonstrated that there is no legal recourse either before or after a crooked election. Which leaves…

                3. Except that it’s not the Supreme Court’s job to take cases just so they can make general pronouncements. If the changes to the elections in Pennsylvania were only for 2020 due to the pandemic then those changes have already been undone, so there’s no dispute for the court to decide.

                4. The dissent is quite telling.

                  1) We won’t hear your case before the election because there has been no harm
                  2) We won’t hear your case during the election because you lack standing
                  3) We won’t hear your case after the election because the argument is moot since the election is over

                  This was not a principled stand, it was absolute and utter horse puckey.

              2. “Now, I don’t know the specifics of the recent election cases…”

                Then you’ve chosen not to find and read them. This makes your speculation little more than hollow.

                1. I would bet that you don’t actually know the specifics of the case. Unless you’ve pulled the relevant statutes in both federal law and the various states you can’t claim any better knowledge than me. At least I’m honest enough to admit the limits of my knowledge.

                    1. I think Mr. Gauch’s point is that there could be a set of circumstances where the Supreme Court’s response is not only reasonable, but required depending upon precisely what the relevant facts are. In that case, you can’t just wave your hands and say that the actions of the court were necessarily unreasonable without bringing at least some facts to the table.

              3. Um… no. Before the election no harm could be proven and after the election was…. too late?
                Anymore they look like the court of sisal to me. Not because want it, but because I think it’s where this ends. They’re busily washing their hands, not remembering how that story ends.

                1. By the reasoning of the Supreme Court, they have “no standing” for hearing *any* case, since the injury or crime already happened, and is therefore moot. If we accept that, then the Supreme Court has no purpose other than to fulfull the Constitutional provision that they should exist.

                  Somehow, I don’t think that’s what the Founders intended.

                  1. Not really. It’s not the job of courts to prevent injury, it’s to first establish whether or not an injury occurred and then to provide a remedy for that injury. If there’s no remedy to be had then there’s no point in hearing the case. The Supreme Court isn’t going to kick Biden out of the White House, so Trump’s 2020 lawsuits are all moot.

                2. Sisal is just cheap, and breaks under strain. Use hemp.
                  And when necessary, silk.
                  John in Indy

                3. It has yet to be established that the period between “no harm yet” and “too late to file” is a measureable temporal event.

              4. “If the changes for the 2020 election applied only because of the pandemic then any case challenging those changes is in fact moot since the changes have essentially reverted.”

                Except they haven’t reverted. The pandemic was the excuse in PA and elsewhere to override or ignore what the legislature (the SOLE body as defined in Article 1) passed.

                1. And since fraud-by-mail and Don’t-minion vote stealing machines worked SO WELL in November, they’re trying to extend those practices nationwide by 2022.

                  There won’t be elections in 2022. People will go through the motions of filling out ballots, but their actual votes won’t mean anything. The ‘winners’ will be determined in closed counting rooms in the middle of the night.

          2. Yeah – no need to pack, they’ll just deny cert, or deny standing, or find a penumbra of an emanation that prevents these executive orders from reversing those executive orders because there was not sufficient administrative consideration before the reversal was signed, but executive orders signed en masse in crayon and stained in drool hours after inauguration have implicit extensive forethought and obviously include all due administrative consideration, and besides, THIS executive branch is owed deference, and drooling simpletons cannot be questioned, and shut up H8r.

    4. Hate speech for them falls into the same category as porn did for one of the SCOTUS justices:
      “They’ll know it when they see (hear) it”

      You want a solid definition? SHUTUP!

      1. Found it, Jacobellis v. Ohio 1964, Justice Potter Stewart “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

    5. After reading this thread, I have a few thoughts again about savagely fighting back.

      Knowingly, deliberately trying to buttrape people’s minds with the notion that only white folks can be “racist” is a vicious untruth that easily qualifies as one of the most extreme forms of hate speech. People who willfully utter such hate speech need to be violently arrested and thrown into prison to serve long terms of at least 10 years per individual offense.

      Knowingly, deliberately trying to buttrape people’s minds with the idea that innocent white folks need to be forcibly terrorized into begging black people for “forgiveness” for the acts of a small minority of others who died centuries ago easily qualifies as one of the most extreme forms of hate speech. People who willfully utter such hate speech need to be violently arrested and thrown into prison to serve long terms of at least 20 years per individual offense.

      Knowingly, deliberately trying to buttrape people’s minds with the notion that white folks and others such as Asians who work hard to earn their personal wealth are by definition racists who take somehow stuff away from black people by working hard and valuing practical skills and honoring commitments is so utterly nasty, creepy, and outright evil that it easily qualifies as extreme hate speech that attacks the very foundations of civilization itself. People who willfully utter such hate speech need to be violently arrested and thrown into prison to serve long terms of at least 40 years per individual offense.

      Knowingly, deliberately trying to buttrape people’s minds with the notion that white folks deserve to be raped and robbed and murdered by notoriously violent black criminals is so viciously evil that it’s unarguably the most extreme manifestation of hate speech. People who willfully utter such hate speech need to be violently arrested and thrown into a forced-labor camp for life to be worked to death under the most inhumane possible conditions with no consideration whatsoever for the supposed Constitutional prohibition of “cruel and unusual punishment.” Why the hell should Constitutional protections apply to those scuttling vermin who have loudly repudiated them with which to begin?

      All of these responses to ugly, extreme hate speech apply specifically and particularly to every single Democratic politician and activist in the country. They need desperately to be rounded up by the millions and stuffed into prisons and vast outdoor forced-labor camps for punishment, reeducation, and partial recovery through forced labor of the incalculable damage they’ve inflicted over the decades on the United States of America.

      Let’s get cracking.

      1. There have been a few successful reverse discrimination lawsuits. There’s one presently in the works, which refuses to come specifically to mind but a couple of the Usuals have talked about it this week.

        Anyway, yeah, there’s a start — sue ’em black-and-blue at the slightest hint of “hate speech” against us unprotected classes.

          1. But, but, everybody knows the remedy for discrimination in the past is more discrimination… 😦

        2. That was one of my thoughts when the ongoing Coca-Cola brouhaha started. White employees are gonna have lawsuit fodder for *decades*. I am down with lawfare at this point.

          Speaking of, anybody know a good cola brand? I can’t abide Pepsi.

          2. Well, if you are where you can get this – we’ve loved the free samples, and what has been provided to us as part of participating in the yearly Giddings Word Wrangler/
            http://www.dublinbottlingworks.com/
            The Dublin Bottling Works soft drinks are amazingly good. I think we have a few bottles stashed away in the back of the fridge from the last Word Wrangler visit. Seriously, the stuff is amazing. Even better than Mexican-market Coke made with real sugar.

  9. Pingback: Freedom of Speech by LawDog – Professor Ornery Dragon

  10. I am reminded of a bit in a Three Stooges short (maybe movie…) where some someone says something a bit provocative and one of the Stooges (no longer recall which) responds with, “Those are fighting words where I come from!” And the fellow seems ready to fight, and says something like, “So you wanna make something of it?” and the Stooge (thinking fast for once) replies, “This ain’t where I come from.”

  12. “Some speech has no protection from restriction… to a lesser extent speech that is owned by others, and commercial speech.”

    Not disagreeing at all, but I’d like to point out that copyright violations are not criminal violations. You can be sued by the copyright holder if they want to, but you won’t be arrested.

      1. The charges are for money laundering and racketeering. It’s the (alleged) conspiracy and fraud that’s the issue with the feds. Also, the NZ government wouldn’t arrest him there for the copyright infringement because it’s not a criminal offense.

        I’m not trying to start a fight! What’s happening with Baen and so many others goes back to what I said maybe a year ago: access to the internet is so ubiquitous that just about everone, including state and federal government, treat it as though it’s a utility. But it hasn’t been legally defined that way, and the Left is using that loophole to strangle opposition.

        Access to the internet needs to be explicitly treated as a utility/common carrier. Same for access to normal financial services.

        1. You’re quite right about Internet access needing to be legally defined as a basic utility with which the leftist filth dare not interfere without extremely violent consequences.

        2. Speaking of money laundering, in addition to the Operation Chokepoint style tactics, I expect HarrisBiden’s DOJ to aggressively pursue civil forfeiture against political opponents, even without bringing criminal charges or even if there are acquittals. I full expect everyone they target in their Reichstag fire redux will sooner rather than later find thge government trying to seize everything they own through civil forfeiture, even if charges or dropped or they get acquitted.

          The Democrats are playing for permanent keeps, and the sooner people recognize that, the better.

          1. A perfect example of how we’re all going to pay for The War on Drugs™️The Bill of Rights.

            (Which explains why Biden and Harris, and the rest of Team Blue, refuse to talk about criminal justice reform, they know how they can use The War on Drugs™️ for other purposes.)

          2. By all means don’t miss this great essay that gets to the heart of the matter over the intensifying double standard between the legal treatment of righteous conservatives, libertarians, and objectivists versus scuttling leftist vermin:

            “The Second Set of Books”
            “These books, and the mandarin class that writes and interprets them, are the real law, determining what is permitted and what is forbidden.”

            https://amgreatness.com/2021/02/16/the-second-set-of-books/

    2. Also keep in mind that another thing that leftists who cite Shenck in their effort to stifle free speech is that case involved CIVIL liability due to falsely shouting fire in a theater AND causing panic that resulted in people getting trampled. Even then, it has been effectively overruled and is considered bad case law that should not be cited except in showing how the case law has evolved.

  13. Pingback: Is or is not | retiredmustang

  14. Kind of hard to expect them to agree what imminent means when infringed it too complicated for their little heads. In fact I’d love to poll an entire graduating high school class and see of our betters bothered to teach the little dumplings the meanings of those two words. At this stage they may be aghast at the idea words have set meanings.

  15. I must be missing something here. Threatening suit or other legal action ‘gainst Baen?
    If so I’d concur, a 1st amendment violation comes in to play.

    If they’re just saying Baen can’t say that ’cause it’s ___ speech and hurts their feelings and they ain’t never ever gonna buy Baen again and neither should anybody else ever be allowed to so there! -sounds like their exercising their 1st amendment right.

    I’m not suggesting stupid or stupid talk’s a good thang, but it done don’t violate the 1st no matter which side one’s on.

    As I said, I’m probably missing something here.

    Now the fact that we the people have allowed the Tech Lords gain control of who can say what and where they can say it, etc., is another matter.

    1. Story goes, Baen had an internet forum, the Bar. Had it for many years, and a number of the regulars here found Hoyt through it.

      Baen also sells ebooks via a company website.

      Some dude took a bunch of things from the forum, and took them to the companies providing computer services to Baen, and argued that Baen’s internet presence should cease. To avoid the sales website being shut down, Baen shut the forum down.

      Basically, this was a next step in Biden affair efforts to impose tyranny by censoring speech.

      1. They’re doing it by weaponizing supposedly private corporations though. We’re seeing this everywhere now. What can be done to stop it? This seems like one of the really big problems right now.

        1. supposedly private corporations

          That “supposedly” is key. When they get to pick and choose what they permit, while still retaining the protections from liability for what they do permit that is normally afforded to carriers (your phone company, for instance, isn’t liable for what you say over the phone because they exercise no control over that), and when they are given a pass from anti-trust rulings that have shut down companies that “control” far smaller slices of their own markets, are they really private? Or are they, in fact, a de-facto, if not de jure, arm of the state?

          Government shields one side from the consequences of their actions while being strictly enforced against the other side. All they’re lacking is the spiffy brown shirts.

          1. “You get to keep your business, on paper anyway, if you run it as we say you must.” Gee, didn’t we hear that before… say, the 1930’s & 1940’s for a while?

              1. No, they obviously intended on this path anyway. Trump simply made their trespass more apparent.

                1. “Trump simply made their trespass more apparent.”. Very this. And that is the real reason why they hate him. Why they want to blame him for causing the problems he is merely a symptom of. Because if he is the problem, the one holding up the mirror to them, then with him gone they can go back into their comfortable illusion where they are the good people, the kind people, the ones fighting for truth and justice.

            1. Exactly. Fascism is the collectivist economic method that allows private ownership of “the means of production”, but the government controls what those companies actually do. Obama first made it clear that the Democrats were openly fascist with his reactions to major companies during the 2008/2009 recession. The current major internet corporations trying to shut down all opposing speech is just ramping up the fascism.

                  1. One of they ways you know that “Ante-” is correct is that they’re stealing Mussolini’s playbook right down to the fashion choices.

                    1. I just wrote a review of Andy Ngo’s book for my blog tomorrow. Short version: Ngo wrote a good, useful book about antifa. Not a fun one, but a useful one.

                    3. Not surprising. Compare Mussolini and Obama sometime, in pictures. The expressions are close enough to make you wonder if the reincarnation religions have a point.

                    4. I think it’s just because the Lizardman version of Q only has so many disguises so he has to reuse them.

                    6. Hehe. I can totally see Obama has one of the lizard men too. There’s always been something a bit off about his emotional reactions, as though a lot of them are just pretending (except for irritation, arrogance, and disdain).

                1. Once long ago we had two young cats which got various vaccinations. The Vet informed us that they would be logy all day. On the way home my wife and I wondered how you tell when a cat is logy.
                  In a similar vein I wonder how do you tell when a Democrat is feral?

              2. Actually I’m pretty sure that Democrats are female in a higher percentage than Republicans. Women are attracted to the idea of a “safety net” and they also are more influenced by social consensus than men. I’ve seen the jokes about how if women couldn’t vote there wouldn’t have been any Democrat presidents… Have no idea if it’s true.

                3. Given that the Democratic Party predates women having the vote by a significant amount, the statement is clearly nonsense.

                  Women value *security*, and the governmental safety net is only one way to get that, and not a very good way at that. Non-Democrat women understand that. Democrat women do not.

        3. Strongly agree. “They” control, for all practical purposeless, any and all money transfers, unless we find alternative means of exchange, if we become annoying we’re truly Fu__ed.

        4. I would note that tech execs, law school faculty, political ‘pollsters’, and members of journalist professional organizations are not part of legal categories such that calling for their deaths carries a greater penalty than usual. To the best of my knowledge.

          There are elements of the apparent conspiracy whose personal security is not provided by organs of state security.

          It isn’t yet time to execute people without reasonable proof of common law capital felony, but the logic of civil war seems to be bending in that direction.

          My thinking isn’t coherent enough to word my best argument against this remedy, but I somehow feel like it may not prove necessary.

        5. I may have posted this link before, but FrontPage Magazine had this piece on the censorship constituting state action given that is at request of and often coordinated with the Democratic Party and government officials:

          https://www.frontpagemag.com/point/2021/02/democrat-congressmen-pressure-cable-providers-daniel-greenfield/

          Since Democrats control Congress and the executive branch, recourse will need to be through the states and potentially the courts, with the caveat that the courts may very well be gutless on this issue.

        6. “It’s not government oppression when we hire civilian contractors to do it.”

          For example, the “fusion center” outfits that are allowed to gather intelligence by methods forbidden to police or Feds, and then “share” it with those agencies. Who are, just incidentally, providing most of the funding for the “private” fusion centers. The courts decided that it’s totally not “fruit of the poisoned tree”. Nothing to see here, move along.

      2. Thanks for the clarification.

        BTW: The First Amendment; “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

        It delimits the government but not, sadly, the Tech Lords and the Elites.

        Baen Bar, sounds like a they came for — and I did nothing because I’m not a … situation, not a 1st amendment problem.

        For years not (deplatformed) people have been denied service and markets, by non government entities because of their, or their opponents’, political convictions.

        They came for GAB, visa, mastercard, paypal, most banks, will not provide them service.

        Paypal, et al, would not transfer funds to gun dealerships.

        Chase, Wells Fargo, etc., will not handle the State of Alaska’s loans/bonds because oil fiends and mining are bad.

        -but I wasn’t ___, so I didn’t…

        Such actions are obscenely wrong, in my opinion often down right evil, but I’ve a problem seeing a 1st amendment violation.

        1. There are de facto laws, and de jure laws.

          If synagogues mysteriously burn down in the middle of the night, and Congress is funding the federal organizations and courts turning a blind eye to the events, you have a de facto law against practice of a religion.

          Right now, the courts are obviously full of merde. Technical readings if who is doing what are less valid when a complicated multi-party criminal conspiracy is involved.

          1. Warnings of the “You want insurrection? Because this is how you get insurrection.” are not only Cassandra-like, they are treated as calling for insurrection in spite of their clear cautionary purpose.

            That is how you get insurrection: denying all calls for redress of grievance short of insurrection.
            ~

            1. “Those who make peaceful revolution impossible will make violent revolution inevitable.” – JFK

              Of course nowadays he would be a pariah in the Democratic Party. Genuine war hero, staunchly anti-Communist, and cut taxes significantly. They wouldn’t overlook his philandering like they did and do Bill Clinton’s.

          1. Extensive purification rituals performed at “refineries” exorcise such, thus the common sulfur odors.

            1. Distilled essence of demon. Burning demon oil. Baking demon cakes. Anointing with demon oil.

              Have some more plot bunnies 🙂

              1. Facebook and Twitter de-platforming “fake news” about demon infestations.

                Demon hunters selling hides on eBay…

              2. When the oil is burned it releases the demons (AKA CO2) into the atmosphere, where it exercises its control over the planet …
                ~

        3. When a “private business” is told “We’d really appreciate you taking this action; it’s what a business that had nothing to hide would do” where does that fall? Ask the founder of True the Vote how many investigations she got over things no one had a problem with before. Is a prosecutor’s decision a government action?

          1. Ah, yes, the old ‘nothing to hide’ excuse. Ask the busybody, “Does your daughter take birth control pills?” and see if they’ve really got ‘nothing to hide’.

            Some things are nobody’s fucking business! Especially the government’s!

      3. I wouldn’t be surprised in the least to learn that the so-called “objectionable speech” posted on Baen’s Bar was put there by a couple of Moby’s, working on collusion with the jerk who raised the fuss about it to start with.
        These days, you just can’t be cynical enough to keep up.

      1. Thanks jsonassh, I agree it’s a free speech issue but as long as it’s just the Tech Lords, “woke”, etc., etc., etc., but _not_ the government and Congress I don’t see a 1st amendment violation.

        Again, 1st Amendment: “Congress shall make no law …”

        Having said that I can easily see the Camel’s and her front man, Sleazy Joe’s government getting involved and then it would be a 1st amendment issue.

        1. Unfortunately right now some people in the government *are* putting pressure on the tech lords to censor their opponents. So the whole thing is a toxic mixture, which is morally a first amendment violation even if they pretend to have some cover of “private company”.

          1. Companies controlled by Democrats taking actions that benefit the Democrat party that controls the government is pretty much the definition of fascism. When the government encourages them to do it, it becomes a Constitutional violation. Since it’s Democrats all the way down, what are the odds that there was no government encouragement behind the deplatforming and restrictions?

        2. Techlord censorship scratched Joe’s back, and Joe has stopped a number of efforts to enforce the law. There was an effort about punishing tech lords last congress. Why should we suppose that the failure to continue to act this congress isn’t Nan and Joe covertly scratching Tech’s back in return?

          1. Bob Ingersoll, a defense attorney in Ohio, used to have a column “The Law is a Ass” in which he discussed the uses and abuses of the law mostly in comics but occasionally venturing into other media (it was originally printed in a magazine for comic book fans). One of the things he discussed was “exclusionary rules” and vigilantes such as Batman. As a “private person” Batman could conduct illegal searches and what not and any evidence uncovered would be admissible. However, in any of the periods of comic book history where Batman has official sanction from the Gotham City government then the same rules that apply to law enforcement officers would apply to him: a search or tap without a warrant would make the evidence inadmissible (maybe–as Mr. Ingersoll noted, judges hate to exclude evidence for the most part and there are a number of exceptions to the exclusionary rules). Note that as a private individual Batman in making those searches would be violating the law and prosecutable for the crimes involved. Failure to even attempt to do so would make him an agent of the government and, once again, the exclusionary rules would apply.

            I do believe the same thing would apply here by analogy. If the government doesn’t even attempt to enforce liability and anti-trust laws that would supposedly rein in widespread censorship by the “tech giants”, then they are acting as agents of the state and the First Amendment would apply.

            1. James Daily & Ryan Davidson in their “The Law Of Superheroes” brought up the problem of Batman’s relationship with the Gotham City Police.

              The more the Police work with Batman, the more Batman becomes an “agent” of the Gotham City Police which means that the Gotham City Police can be successfully sued for Batman’s actions.

            2. “Failure to even attempt to do so would make him an agent of the government”
              As we’re seeing, prosecutorial discretion / police discretion covers a multitude of sins.

              1. Civil suits, not criminal. However, there’s a lot of legerdemain about that, too. For instance, in some states, you can’t sue for damages you incurred in the course of committing a felony. Even if I am completely negligent about leaving a deep hole in my lawn where a walker would have difficulty see it, and no signage, a burglar can’t sue if he falls into it. One can see creative application.

                The downside “what the law says about superheroics” is that the lawyers seldom discuss how the law would change. “Secret identities” are right out — well, the reason why John Doe can’t be a cop under a secret identity is that they don’t want him THAT much, and if it came to that, five cops can hold him down and pull off his mask. If you have superpowered criminals prowling the cities, you have no choice about Superman. And currently the FAA regulates flight only by means of a device (not to mention that unadded flying is not against the law, as a judge pointed out when a woman was accused of being a witch by witnesses who claimed to see her flying) but as soon as they can fly into airspace, unaided flight will be.

          2. Over and over we see elite, the experts, our beloved leaders are above the law, are outlaws. Look for a legal remit y while they control the courts? Look for sanity while the crazies run the asylum?

        3. It may not be a 1st Amendment issue as such, but when a group goes after, not the offending party, but instead the goes to the people who keep them online, it certainly should be concerning and I suspect the closest one can find to preventing them from getting kicked offline is the 1st.

          They’re skipping the “go to the companies complaint department” with their issues and instead “get the landlord to terminate their lease RIGHT NOW” to get them kicked out of the strip mall. Or going to a personal level, it’d be me not going to jiminalaska to complain about his growing corpse flowers in his yard, but going to his landlord to get him kicked off the property entirely.

          2. “It may not be a 1st Amendment issue as such, but when a group goes after, not the offending party, but instead the goes to the people who keep them online, it certainly should be concerning and I suspect the closest one can find to preventing them from getting kicked offline is the 1st.

            They’re skipping the “go to the companies complaint department” with their issues and instead “get the landlord to terminate their lease RIGHT NOW” to get them kicked out of the strip mall.”

            This is closely related to the concept of a Secondary Boycott, which is illegal under US labor law.

  16. Thank you for the clarifications and citations.
    Too often we walk around with the general idea of how this is all supposed to work, but we don’t know the specifics.
    And as much as the internet has now made this information generally available, we still don’t bother looking it up. (It’s easier to fall down a youtube/pinterest rabbit hole than we like to admit.)
    As I’m homeschooling my children, it makes me wonder what else I/they may be missing in general education. (They’ll be reading this article for today’s civics lesson.)

  17. The leftist (I refuse to use the word liberal to describe them because they stole that label — it should belong to us) refusal to support free speech is one of the things that makes me saddest about my friends and relatives who still are rabid Dem partisans. How can they support a party which is against free speech? It’s a complete deal breaker to me. If I were still a Democrat (I actually was, twenty years ago, mostly because I wasn’t very political at all), that alone would cause me to leave them.

    I never thought I’d see the day where half of the country no longer cares about free speech. So much blame belongs to the universities. So burn them all down.

    1. ” If I were still a Democrat (I actually was, twenty years ago, mostly because I wasn’t very political at all),”

      …that describes most of the Democrats I’ve known. They’re Dems because of cultural force of habit, and believing as a matter of habit that all things good are on that side, not because of any genuine political conviction, let alone political examination.

    2. The indoctrination started *long* before those teachers, students, and administrators made it to the university system.

    3. Can we have a few hours in the libraries and archives first? I want to grab some first editions, older science books, early history books, and document collections. I don’t think they will be missed (aside from the stuff in the special collections/archives), since I was the only one who ever seemed to go to those parts of the stacks.

      1. I recently raised the priority of saving archive copies of ebooks that I wouldn’t like to lose. Have done some of the work but now need to set up a schedule to get the books into Calibre. And save an external backup copy. Amazon isn’t quite as bad as Twitler and Fakebook yet, but it seems to be moving in that direction.

        My family has been nagging me to get rid of some of the 20 boxes of paperback SFF and romance, and now I’m like “No”. Have to have something to feed my addiction if things get really bad.

        1. Advantage of being early (earlier?) on .epub … didn’t start out as .epub. Plus various sites that went down not long after I started (immediate wake up call). Three of which where acquired by B&N. It took forever for B&N to incorporate those libraries into my B&N library. Thus I have been pulling into Calibre almost from the beginning. Including decryption. Thus I have:

          1. Original copies, *some encrypted, some not.* Archived.
          2. Decrypted original copies **Imported in to Calibre**
          3. B&N – Windows download, *
          4. #3 archived
          5. #3 **
          6. Calibre Archived. Multiple copies.

          Only thing I have to keep checking is “Is Calibre Decryption Add-on still working?” B&N keeps tweaking the decryption process … So, if Add-on not working. When did it stop? Is there an upgrade? Will do the same when/if I get any Amazon books.

          It isn’t like i’m sharing books around. Except where B&N has an actual “share” option on any particular book. They are MINE dang it. Okay. Not sharing books around. Am sharing devices; well a device, which access the same library. (Can’t purchase books. Turned on setting that requires password on that device on every purchase.) Which is 100% legal. They all have to share the one device, like a physical book to access my library. I don’t, I have other devices.

    1. What the various media figures who want to use the force of either law or public opinion to shut down their competitors fail to realize is that the exact reasoning and tactics can be used to shut them down, if for some reason they should run afoul of their friends in high places. Look at how expendable Stalin’s supporters were. Look at Maximilien Robespierre, who lived and died by the guillotine. Look at the speed at which yesterday’s darling celebrity can become today’s monstrous villain, with one sentence or even word. Those who would restrict the freedom of speech of their rivals or enemies may be forging their own shackles.

        1. Isn’t it wonderful to be on the right side of history? The side that will finally crush the reactionary forces of religious superstition and bring about a glorious future for all mankind?
          Except that this sweet seductive daydream is a sickening lie. Excuse me while I go barf.

    2. Didn’t read it, but I saw Taibbi’s name in the link.

      Matt Taibbi, Glen Greenwald, and I think one or two others on their side of the pundit aisle, are fully aware of just how big of a disaster the current censorship will likely be.

        1. Sullivan still waffles. It’s like the awareness of it is nagging at the back of his mind, but he can’t really admit it. Ace had a post up today about Sullivan insisting that an individual he was interviewing agree that the presidential election wasn’t fraudulent. The individual has reservations about the election, and refused to agree with Sullivan, which was apparently causing the latter to get quite upset and become even more insistant.

          From what I’ve seen of Greenwald and Taibbi lately, I don’t think they’d have been as pushy as Sullivan was.

          1. Just realized: reactions like Sullivan’s aren’t waffling, they’re fear. “Look, guy, you’ve got to agree with the official version, or they’re going to make trouble for ALL of us! Just nod your head and shut up, all righr?”

            1. I’d think it’s something a little different – if it was not all okeydoke, the person’s moral basis and internal reference framework would require they do something. Since they do not in fact want to do anything, that means it ABSOLUTELY MUST all be okeydoke.

      2. It’s a strange time. I agree with Greenwald over last 4 yrs especially more than a lot of the blogs I used to read BT.

  19. Democrats just want everyone, who has a positive outlook, or is full of sarcasm, to SHUT UP! , yet we have to hear their mumbled speeches of lies and false promises, and run with it regardless if we agree or not. Because THEY know whats best for you, because your too dumb to know whats best for yourself.

    Such garbage the Democrats have for brains.

  20. The thing I always come back to, which was the underlying premise that the ACLU came from when they defended the Skokie klan march, is that precedents go both ways: If they are allowed by law to do this to THEM, a different set of they can do this to YOU.

    The fact that this is never-not-ever recognized by the current idiots never ceases to amaze me.

    1. The Left is confident that, if they are allowed to do this, they need never worry about their political opponents doing it because their political opponents will never, ever, regain power. AND any debunked claims about rigged elections are misinformation, the spreading of which carries heavy criminal penalties – including trial before a secret tribunal because open court trial risks the misinformation and conspiracies theories being released upon the general public.
      ~

      1. They were confident in 2012, too. In 2016 they had to fraud to such a degree that the whole bloody world saw it. The red flags are there. The private investigations (nevermind the “lawsuits” that existed purely to gain acquittal) have uncovered, time after time, malfeasance, chicanery, and other kinds of f*ckery afoot over and over and over again. Fake ballots, ballots counted twice (or more) times, lost ballots, fake people, people voting more than once, ballots that were never filled out by the person who they were addressed to, and more. There wasn’t just *one* cabal that worked to *ahem* “fortify” a false election, there were many and while most of them did not actively collude, they were all working towards a singular goal.

        Side note, the “fortify” is telling. They know they done wrong. They are holed up in their hideout, “fortifying” the door while the cops are pleasantly knocking and asking if they have the time to answer just a few questions. Save the cops aren’t there, it’s just an angry mob saying “for the love of Bob, somebody INVESTIGATE THIS CRAP!”

          1. Sarah has testified to witnessing fraud in Colorado in 2012. The whole world saw the 2016 fraud — Russian Collusion — for the scam it was.

            And yes, the 2020 fraud was blatant, overt, conspicuous and glaring. Which is why fealty to it is a prerequisite for commenters.
            ~

    2. The left believes that the only reason why everyone doesn’t agree with them is because they can’t explain their positions properly. President Obama, on more than one occasion, complained about his inability to do this.

      So by their own reasoning, if the Left can merely keep the other side from feeding bad information and fake news to the public, the left will win every election.

      2. It’s the same pernicious nonsense as “If enemy X and Enemy Y simply *talked to each other* and *understood each other*, they wouldn’t fight.” No. Just no. Will it work sometimes? Sure. Not often enough to count on it.

        1. I remember reviews of romance novels where the hero and heroine had plentiful reasons to not talk to each other, and yet people would still complain that they didn’t just do it.

  21. Freedom of speech by Lawdog? How about freedom of speech by all of us?

    Seriously, as Mark Steyn has observed, Freedom of Speech is a cultural thing. If we do not have a culture of freedom of speech the law even embedded in the Constitution, means squat.
    ~

    1. All US law descends from the Constitution.

      That’s why it was so vital they classify it as a “living document” subject to Narrative.

      Right now, there *is* no law in what used to be the United States of America. There’s no legitimate government, either. Just an oligarchy riding the momentum of a dead polity, hoping the proletariat don’t get too restless before they get their halters and blinders permanently installed.

      2. TRX Says:
        All US law descends from the Constitution.
        Well not really. There are many places where the constitution is silent. The IXth and Xth amendments leave these not explicitly enumerated rights to the states (and to the people). If no explicit state law exists then there may be recourse to English common law or potentially other preexisting legal structures.

          1. The Declaration of Independence points toward the legitimacy of the authority (systems of government enacted by free persons with the goal of *protecting* their natural-law rights). Note that the Declaration does not *create* the legitimacy, it describes. (And I know that others here can expand on this better than I can).

            Or, to address another quibble I sometimes see concerning the Declaration: The Declaration is not, and does not pretend to be, a *legal* document. It is more fundamental than that.

  22. Damnitall, under the US constitution we have every right to yell fire in a crowded theater.
    What we cannot expect is immunity from the consequences should it be proven that we did so as a known falsehood, with intent to cause malicious and grievous harm.
    What the left insist on is a treatment of this such that by the same standard application a theater would be required to fit each and every patron with a locked ball gag upon entry so as to guarantee that no one could commit the crime of crying fire. This is precisely what they intend to do with their cancel culture tactics, fit each and every one of us with a gag that they hold the keys to.

    1. I like to distinguish between speech and verbal acts. If I’m a mob boss and I say to my loyal lieutenant “Go kill that Mongolian gerbil rancher” (or some euphemism to defeat eavesdropping by law enforcement) that’s far closer to me using my muscles to aim and fire the gun than it is to me saying “I hate Mongolian gerbil ranchers.”

            1. Yeah. One of the things I’ve been struggling with the last decade is understanding how people get and keep power. Because in lots of situations if all of those opposing the power got together they could easily win. But they don’t. Too many people are busy sycophanting (totally a word) and others are falsifying preferences so like-minded people don’t realize they *are* like-minded. Other people just don’t want to “get involved”.

              And usually there’s an element of fear involved, because those who seek power are more ruthless. If you’re willing to threaten people’s families or kill the occasional dissident, it does a lot to décourager les autres.

              I think the falsifying preferences thing is much less of an issue now though, when we can find each other on the internet. Which is certainly why the left is trying so hard to control the means of communication. I really hope that genie is really and truly out of the bottle. I’m appalled by all of the censorship and suppression, but there’s still lots of communication going on. Which is why they’re focusing on de-platforming, because those levers affect whole swathes of people, not just an individual dissident here and there.

                1. Most people understand the principle of “With great power comes great responsibility” and do their best to avoid excess* power.

                  *Various definitions of “excess” apply, according to individual purposes, but it is generally power over their own lives and possibly over those close to them, e.g., family. Some seek petty power, such as in office politics, but few pursue great power because few want responsibility, let alone great responsibility.
                  ~

                  1. Leftroids want absolute power with zero responsibility. Just look at Cuomo for a blatant example. Has anybody taken responsibility for the fiasco 0bamacare turned into? Or any of their other ‘enlightened’ ideas?

                    1. anybody taken responsibility for the fiasco 0bamacare turned into? Or any of their other ‘enlightened’ ideas?

                      –
                      Of coarse not. Each and everyone involved have the opinion that “It wasn’t My idea. I tried to make sure it was decent and fair!” Even when they attach their name to whatever. Never mind that there were plenty of others saying “No. Not possible. This, This, That, etc.” is going to happen no matter what; then does. This is true of all of their ‘enlightened’ ideas no matter what the idea is.

                    2. Leftoids are dumb enough to believe one can have great power with no responsibility, but that is like believing you can eat baked beans and never fart.
                      ~

    2. Thank you – I tire of being the only pedant who argues that you sure as heck can shout “Fire” in that crowded theatre with little concern over repercussions. For the law to punish you would require two (at least) highly unlikely proofs: a) it was you what dood it and b) you knew it was false.

      a) Proof it was you: it is a crowded theatre, theatres tend to be dimly lit. It would be very tough to prove just who shouted. Given the nature of any panic it becomes extra challenging to confirm you as the initial shouter.

      b) Proof you knew it was false. It is very difficult to prove a person’s intent absent compelling external evidence. “I smelled smoke” is an entirely comprehensive defense.

      N.B.: what the phrase actually means is that “Freedom of Speech” is not a defense against charges of falsely shouting “Fire” in that crowded theatre. If you’re dumb enough to confess that you thought it a hilarious jest you deserve to be locked away and forced to wear silly clothes.
      ~

      1. That said, it was a point of agreed fact among theater people that one should evacuate theaters with some excuse that was not “Fire!”, because that caused panic and trampling.

        1. And notably, when this phrasology first appeared in the law, open flame was a standard feature of the theater, with the footlights burning happily away for each performance. Costumes swinging out too far and bursting into flames were a regular occurrence reported in the papers, and audiences were primed to stampede to the exits before they became another newspaper story body count, so miscreants shouting ‘fire’ with intent to panic were working fertile ground.

  23. I really enjoyed the clarity of the writing.

    I enjoyed the specific references–I can use those.

    1. Not sure if his blog still up but he’s got one and is also author of a parable that’s passed around regarding giving up rights quite a lot. Plus some stories are hilarious

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  26. 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.

    That’s a problem as described. Namely, a law is unconstitutionally vague if a reasonably prudent man can not tell whether an act is forbidden, and this is turning on the actions of other people after your acts are complete (and unchangeable).

    Trying to hire a hitman is illegal whether he’s sincere or an undercover cop trying to record your offer for prosecution.

  27. I wonder if the willingness of so many corporations to yield to the Left is that the Leftists have proven repeatedly they will riot, loot, and burn. Amazon doesn’t want its warehouses looted and burned. Google doesn’t want its corporate headquarters torched. Perhaps CEOs just looked at the difference between the Left and the Right and chose sides based on a short term view of survival. The Left is violent — they will smash windows and torch whole neighborhoods to get their way. The Right? Well, I think they broke a window a few weeks ago.

    Its like a modern equivalent of Danegeld.

    1. That’s exactly what it is. Individuals do it as well. I see “Black Lives matter” signs and all variations (hate has no home here, etc) throughout my neighborhood. We are a very mixed neighborhood, but we are turning majority white (because we’re on the outside edge of the trendy area). I see those signs in the windows as a plea to any potential rioters (who have not made an appearance up here except for some local fools who blew up an ATM in the block above me last July) to please leave us for last. I just have to laugh.

      1. That puts me in mind of an analogy to a Cult of Cthulhu. Appease the monster in the hope it will eat you last.

        Yeah, it needs some work…

        1. How can they go around calling everybody else Nazis when THEY are the ones following the Nazi playbook page for page? They’re doing everything that worked so well in 1930’s Germany. They even tried to turn Brian Sicknick into Horst Wessel until their lies were exposed. Why else would the party of ‘defund the police’ and ‘all cops are RRRAAACIIISSST pigs’ throw him a hero’s funeral?

    2. Possibly. Also why a crucifix in urine is “free expression,” while a cartoon of Mohammed is problematic. Noone expects Christians to cut off their enemies’ heads.

    3. While I’m sure that’s a feature, leftists have been infiltrating the HR, PR, and legal departments of large corporations for decades now. Where they have enough power they can make the company bend the knee (figuratively or literally) from within, shareholders or executives be damned.

      I wonder if that’s why they’re so eager to go after small businesses with punitive taxation and regulation, lawfare, and so forth. Someone’s random small business may be more easy to pressure into compliance because they’re working with limited resources, but there are a lot more small businesses than there are major corporations. Infiltrate major corporations and drive smaller businesses into poverty, and it’s easier to push for Socialist Utopia(tm).

      1. That’s the Mussolini model of fascism; have a small number of mega-corporations that are nominally private but act as instruments of the state, and force all the small businesses out of business so that they can serve as a resistance to state power.

    4. On the other hand, the Right seems better at targeting. You will not catch them smashing in the windows at a residence for pediatric cancer patients if they are angry about the police.

      On the third hand, the Left is so generically and extensively destructive that the danger is real even if they target you very badly.

      1. The targeting of the left is about the same as lobbing a couple kiloton ICBM nuke towards the target. You’ll get close and probably take out the target at the same time, but there’s going to be a LOT of collateral damage.

        The targeting of the right is more like a Tomahawk cruise missile, or maybe a sniper a couple hundred yards off. Minimal collateral damage, if any, and the target is flattened.

        But, which one is going to scare people more to know it’s out there, maybe get them calling out “oh great and powerful federal government, protect us from this horror!” while either ignoring or not knowing the very people they’re calling out for help to, set in motion the thing they’re begging to be saved from…

        1. I’ve been arguing this since Epiphany (Jan 6th). Targeting is what makes the terrorist. People upset at government and politician’s malfeasance? Showed their anger to the government and those politicians. And ONLY them. Not terrorism, now matter how much people scream about it. *Effective*, *targeted* violence. You might dislike direct action and violence (most people are uncomfortable with I, and that’s okay), but that doesn’t actually make it terrorism. Government institutions are legitimate targets for anti-government actions. You can disagree about the legitimacy of those performing such actions, but it doesn’t make such targets illegitimate. Admittedly, a fine distinction. But an important one.

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  29. Which pretty much means the “interview” the U.S. Marshalls conducted on me in regards to a certain lawyer who should have been dragged out and shot was unlawful. Seeing as I was in NH, and he was in Arizona at the time; and I have not, and never have had, a band of followers, henchmen, or even little yellow minions to carry our my nefarious plans to eliminate enemies of the Constitution.

        1. Remember the days before deregulation? Have walked through Business Class on the way to Economy *coughcattlecarcough* seating?

          1. What do I know? I’ve flown maybe a dozen times in 64 years … rather difficult to pack the truck and trailer for camping. Heck it is a PIA to pack everything for backpack camping, once and a while; well nerve racking anyway. Will the pack and gear make it? In general backpacking gear isn’t carry on.

  31. 1) Intent to speak;

    2) Imminence of Lawlessness; and

    3) Likelihood of Lawlessness. Golly gee Mr. Dog, since a certain POTUS was not intending to incite violence while he was giving his speech and lawlessness was not imminent at his speech since the vandals were a coupla miles away already partying while he was speaking (about peacefully voicing an objection and going home) and that takes care of 3) as well. Does this mean that POTUS was practicing protected speech? Asking for 74 million or so friends.

  32. An (un-named, be it noted) Ontario schoolboard is alleged to be making a list of books to be removed from their school libraries. Mr. journalist was too chickenshit to name and shame.

    I don’t like linking Twitter, but in this case it is worth doing. Clifford the Big Red Dog, french version, is on the banned list because of a Halloween costume. Farley Mowat is on the list.

    Dr. Seuss is on the fricking list. Because of one (1) sentence.

    That’s my tax money being -wasted- harder and faster than if they were burning 100 dollar bills in a barrel in front of the school.

    2. The reason that “Clifford the Big Red Dog, french version,” is on the list seems obvious: Clifford is a Communist (french version.)
      ~

      1. Communist dog would be a plus mark. The book is banned because one (1) picture of an Indian Halloween costume. In the FRENCH version, which is really reaching. You know how many copies of French Clifford exist in the world? Maybe hundreds, but not thousands.

        This is a nation whose Dear Leader has been caught doing black-face 47 times, and sticking a banana down his pants for good measure. Always a free pass for the Shiny Pony, but Clifford the Big Red Dog gets cancelled.

        I’m scunnered. 😡

    1. One doesn’t yet. It’s one of the freaking things I have to deal with soon. As in before summer. THere are more important things like the site publiclizing other to-the-right-of-lenin authors.
      I’m sorry. It’s my fault. the last year kind of slammed me hard.

      1. I notice this question keeps coming up. Why don’t you just take it off the sidebar until you’re ready to deal with it?

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