Protip: If you come here with a Pepe the Frog avi talking about how people are genetically inferior, you won’t stay for long.

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Jan 3Liked by Ken White

The real tragedy of the First Amendment is just how many people have died in theater fires only because there’s no legal way to alert anyone.

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This is a worthwhile effort but also a Herculean one. I was going to suggest that you consider "unprotected speech" as shorthand for the set of exceptions that permit content-based regulation without strict scrutiny. But even that shorthand is potentially misleading to a layperson given that "unprotected speech" can be protected by other doctrines (off the top of my head, overbreadth, vagueness, and the bar on viewpoint discrimination).

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Great post, but notice that the Johnson ammendment doesn't fit into this analysis. If my church preaches that God wants you to wear a dunce hat then my church qualifies for the lower tax status. OTOH if my church preaches God wants you to elect Trump then I am subject to the tax.

It's the actual expressive content here which triggers what amounts to a fine so either the Johnson ammendment is facially unconstitutional (both free exercise and free speech problems) or it should fall into a first ammendment exception.

Am I missing something? Or is this as doctrinally inconsistent as it seems?

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Skip the boring stuff. You should discuss "prurient interests" in depth.

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The 1st amendment has a very straight forward meaning. I don't think we need lawyers and political pundits "deciphering that meaning", yet here we are! (Not that I mind, of course)


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Excellent explanation.

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I learned something from this, thank you for writing it

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So is the common bad metaphor of "falsely shouting fire in a crowded theater", if taken extremely literally, an example of the rule about expressive conduct?

If I actually cause an accident where people get hurt storming out of a theater, the government can punish me because they're not punishing my speech based on the content of a message I'm trying to convey, they're punishing me for the action of causing an unnecessary panick that hurt people. Is that somewhat accurate?

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Jason LaBar, the public defender who represented Bryan Kohberger in Pennsylvania was quoted as saying this:

"People are too free to express their views without repercussions... and in this case, a lot of people have already expressed either guilt or innocence and really neither helps either the prosecution or defense."

Can you make sense of this? He seems pretty free to say people are too free.


Kohberger Won't Get Fair Trial In Idaho, Public Defender

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I have not studied law, but I once participated in a long argument with an attorney who had urged that Congress reinstate the Fairness Doctrine, which requires broadcasters to present opposing viewpoints to matters of public interest. I took the position that the Doctrine was (or should be) a 1st Amendment issue because the Doctrine, instead of prohibiting political speech, *compelled* it. It seemed to me that compelling political speech was no less a violation of the 1st Amendment than prohibiting political speech.

I can't see how any of the exceptions to the 1st Amendment you discussed apply here. Has this issue ever been addressed by the courts?

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Thank you! Clear explanations, in layperson's terms, and including relevant references are of utmost importance to those of us who are willing to be educated, but don't have the extensive background in the subject material that an expert does. I found this summary to be very informative and easy to digest.

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Maybe it is confusing because by its own terms, the First Amendment only applies to Congress.

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Another thing worth clarifying: the concept of “protected speech”. Some non-excepted speech is more protected than others (political speech, for instance).

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We are a government made up of rules and standards and their application. This makes sense to me now. Thank you for slowing it down and making clarity. Happy New Year.

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That was an exceptional attempt but I doubt it was successful for a lot of people.

Some otherwise intelligent people think First amendment means they can say anything, anywhere about anyone, free from consequences.

What it really means is your rights all stop where my nose begins.

For instance if someone wants to say hateful and hurtful things in a forum, on a street corner, or in a bar, I can walk away. But if you are in my doorway on my property, then in Texas, those are fighting words, and I have the right to protect myself physically. You are up in my nose, expect me to evict you you.

A friend who was losing an arguement in my back seat, while I was attempting to get directions from another friend on the phone. Screamed at me about the First Amendment. I stopped the car, pulled her out and told her to yell at anyone who would listen. I then called her husband and told him where he could pick her up.

Time and place...and I am not a governmental entity.

My car and home are not public spaces, like a internet forum, they are private spaces, subject to the rules of the owners.

I embrace Elon's right to waste 40 billion, on a dead bird. But the reality is that forum had become a verbal donniebrook much as the back seat of my car became the night I put an old friend out on a curb. His overpriced attempt to create a safe space for him and his bigoted friends, was the nail in the coffin of the poor little bluebird of happiness.

But it was a blessing for Medium, substack, Post, and Mastodon, and even for Facebook.

What is truly sad, is it is not just regular people, it is apparently lawyers. More than one lawyer has tried to compare the women's march against Kavanuagh and the BLM marches to Jan. 6 Seditious riot.

So I guess we should be patient with your readers, if even Ivy league lawyers are clueless.

Keep tilting at that windmill, I am here for it and I applaud Don Quixote Popehat!

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