I applaud your concise and direct explanation of the exceptions to the First Amendment. It would, however, be much more valuable if a significant portion of the adult population in this country was capable of understanding what you wrote or even of understanding how our justice system is supposed to work. Most schools no longer teach "civics," leaving a substantial part of our citizenry ignorant about our form of government and the cleverness of its design. [I recall my high school civics class, although not fondly, but only because the teacher required us to walk down to city hall and listen to some guy who was running for president. When we returned to class, he asked for our reactions. My gut instinct suggested that the guy shouldn't be trusted, and I said so. Yup, I got sent to the principal's office, and you've now deduced that the candidate was Richard Nixon. Probably learned more from that episode than from any other part of that class...]
How have 20 comments gone by and nobody asked you the story of the time your wife went to the mailbox and came back with a letter asking you for child support for a ten-year-old probably named Carlos?
Today we have the technology to prove paternity beyond reasonable doubt. Fathers of any age have a responsibility to support thier children until adulthood. This will settle one of the bigger excuses for convenience abortion.
If children are taught at puberty that they share respinsibility, we may see less promiscuity and fewer abortions.
How in the world are paternity tests supposed to justify the abrogation of bodily autonomy of pregnant people? That doesn't make any sense.
Then there's also the fact that, when abortion is criminalized, unwilling parents increasingly resort to violent attacks against their pregnant partners [1],[2] to either end their partners' pregnancies, or end their lives. Unless we declare that pregnant people are inherently less worthy of legal protection than their pregnancies, criminalization of abortion can't be viewed as a positive development.
this is 100% correct, yet so was the idea that Roe was settled law.
In other words, the court can, if it wishes, do whatever the f it wants with no consequences.
there is no evidence that the court wants to alter its interpretation of the 1st, but it CAN. and flip you off in the process, just because it feels like it some term
I think ordinary civilians deserve some compassion about their failure to understand Constitutional interpretation and the First Amendment in particular since we live in a country where the Supreme Court has been taken over by a bunch of religious extremist hacks who have no problem randomly applying law from the Middle Ages to overturn Roe, interfering in a state’s recount of electoral votes to anoint the proper winner . . . While saying “don’t try this at home kids, this train only!” . . . while also finding that government can punish a kid for a “Bong Hits for Jesus” sign and that kids are not free from compulsory drug testing to participate in extracurriculars with no probable cause or even reasonable suspicion of drug use. In other words, the general public correctly intuits that we no don’t have a system of laws so much as rule by a super special counsel of unelected elders, most of whom belong to a distinct minority sect and who got their seats specifically because of their proven willingness to start with the desired outcome and work backwards to find reasoning.
So I have started feeling more compassion for ordinary folks who think that First Amendment exceptions can be created ad hoc. I certainly can’t categorically say that they are wrong.
If it wasn’t obvious, I was trying to make the point that the speech clause of the First Amendment is subject to a great deal of encroachment from the anti-establishment clause and the free exercise clause, which is basically becoming THE FREE EXERCISE (of favored) RELIGIONS CLAUSE and (whisper the clause that used to limit the establishment of religion). The entire abortion law debacle is a particular religious view (hostile) about the role of women and control of reproduction imposed on the entire nation. And when the court, solely through seating enough religious extremists of a certain stripe, completely reverse established law to impose its religious preference on everyone, you can’t blame ordinary folks for not thinking that the free speech clause is all that hard and fast.
"The entire abortion law debacle is a particular religious view (hostile) about the role of women and control of reproduction imposed on the entire nation."
This is a complete lie. You obviously, never read the Opinion, which admitted the Federal Judiciary should have never taken Roe in the first place. Many legal scholars have agreed with this over the decades. If it was imposed on the Nation, why is it still legal in New York, California etc...?
I'm not a lawyer nor an American, so I'm sure I'm missing something, but from my naïve standpoint I have a hard time understanding this reasoning: "[the court] had found that child abuse is integral to child pornography and therefore it falls into the integral-to crime exception..."
If this summary be correct, then naïvely, it looks as though the court has committed a logical howler: they've observed that crime is integral to certain speech, and concluded that said speech falls under an exception for speech integral to crime. But "A is integral to B" does not imply that "B is integral to A".
I don't know what you're missing. But, porn is an expression of a sexual act. Even adult porn. So, in the case of adult porn the act isn't illegal but in the case of child porn the act itself (the creation of the media) is illegal.
As a matter of formal logic this statement doesn't make sense:
'But "A is integral to B" does not imply that "B is integral to A"'
Did the court suggest that B is integral to A? Did they imply that porn is integral to abuse?
I think I understand the mathematical expression you're trying to get at, but you aren't expressing it well. Or perhaps they aren't expressing it well in the case law. The crime and the speech are one and the same in the case of child porn. It isn't illegal for two 14 year olds to engage in sex. Or indeed for a 14 year old boy to masturbate (in the case in question this was the filmed act). If it were illegal for 14 year olds to masturbate a great many people would be in jail. The crime is the act of filming it. A further crime is committed when it is distributed. Just as a person who cooks meth commits one crime and then another, separate crime when they distribute it.
There may be an inconsistency in carving out an exception for child porn, but it is narrow and well-defined. That's very much the point of the essay here.
'As a matter of formal logic' I mean that the 2-ary predicate Integral(x,y) is not symmetric, but that the court's reasoning, as summarized, appears to presume that it is.
Incidentally, I have some training as a logician. My doctoral advisor was Penelope Maddy.
I should have said that it doesn't make sense in this context as a matter of formal logic. What I mean is that child porn isn't part of the venn diagram of expression. When the courts say it's integral they do not mean it the way mathematicians mean the word "integral." The court means it in the sense of: A car engine is integral to a car; without the engine it isn't a car.
The logical inconsistency here is not in the union we are discussing. The logical inconsistency is that we do not restraint expression. Except in these narrowly defined cases. And that is rather the point of the essay.
The crush video law is instructive. Fighting dogs for sport is illegal. Having a video of dogs fighting is not. Or it isn't the crime itself. The case of child porn is different because the expression is the crime. That's the logical inconsistency.
Edit: I went back and looked at the text you cite. It is poorly worded. I think it would be helpful not to view it as a logical solution to a problem. It's much closer to an exception that proves the rule (although, it isn't exactly that either). It isn't a content neutral exception and that's what really sets it apart. The court is saying it's the content that is the problem. Although I admit after rereading the text, they used poor language.
"'But "A is integral to B" does not imply that "B is integral to A"'"
Yes, it does. Perhaps you don't understand the word "integral."
It's not a synonym for "implies." It has a different meaning because it's a different word with an entirely different etymology.
You have stumbled into one of those "log off your account when you step away from the keyboard" situations, Knox. Somebody is using your e-mail account to make you look like a fool. You need to get that person under control.
I think the sticky wicket is the way the court is using the word.
If we’re going lay modal logic over legal language we need to be more precise in what we are talking about.
Child porn isn’t integral to child abuse. It is abuse. The confusion arises when we get at a remove from the production of child porn. The case in question isn’t about the production of the porn. It’s about the sale of it. So, the word integral seems like a red herring here. If I understand the distinction you are making it’s that child abuse is integral to child porn but child porn isn’t integral to child abuse? I’m not sure how relevant that is. The line that the court was drawing was between the financial incentives of child porn producers and the consumer and how even if the consumer isn’t involved in the abuse directly one follows from the other.
Trying to interpret constitutional law as a matter of formal logic is a fool’s errand. That’s how we ended up with a second amendment as a defense of gun ownership instead of a defense of the comma.
Yeah, I dunno. I'm an American, and not a lawyer. But, this line of reasoning:
"It must be integral to a crime, and child abuse is integral to child pornography. However, animal abuse is not integral to animal cruelty and therefore depictions of animal cruelty do not fall under the umbrella of First Amendment exceptions."
makes me feel like my interpretation is missing some key elements.
I'm not a complete idiot on our laws, just mostly. I find myself lost here.
Otherwise, this is a great article, and I'm bookmarking it for later use.
Ken has another essay on the law about crush videos. I think he wrote it with Prof. Kerr. The problem with the crush videos was that it wasn't content neutral. If I'm remembering correctly. It created a category of disfavored speech. And it was being used as a bludgeon against a guy who wasn't even selling crush videos. I'm probably screwing up the details but that's what I remember from reading the article a year ago or so. You can find it on popehat.com I think.
Edit: So I checked popehat and found an article but it may not be the one I'm thinking of. Here's the one I found:
If I get some time I'll try to find the one I was thinking of, or think I was thinking of. I could have sworn Orin Kerr wrote some of it.
In any case, it was a shitty law. Just like the Colorado law about forcing people to build websites for LGBT weddings was a shitty law (in my opinion). The motives might have been pure--actually in the crush video law I think the motives were suspect too--but the law was shitty in application. Reasonable minds can differ on the motives. The laws were shitty.
Very possible. Also possible I’m attributing it to Ken instead of someone else. The one I’m thinking about goes into the politician who came up with it and how it was nakedly pandering to public opinion about animal rights.
The line of reasoning that crime is "integral" to production of CP and therefore CP gets an exception to the first amendment is not worth thinking too hard about. You would think CP wouldn't need its own category since it's by definition obscene, and the reason it *does* have its own category is just an accident of history - NY made a law that outlawed CP even if not obscene, and rather than let defendants who had violated that law get off the hook, the Supreme Court created a new category of non-protected speech. As they say, hard cases make bad law. It's really unlikely that the Court will ever apply that same reasoning to widen a hole in the First Amendment.
There are lots of laws that limit speech that aren't in the exception list, for instance perjury, copyright and trademark law, laws of confidentiality, the law of contract (if I sign an endorsement contract, or an NDA, then that limits my speech), espionage law and the laws governing classified documents
That is, if you regard the First Amendment as meaning "any statement made by any person at any time for any reason is absolutely privileged" then consider what the exceptions are to that in court, then they are rather more extensive than the ones that the Supreme Court listed.
When somebody incites a riot, or tries to stop an election from taking place, nobody is trying to stop speech. (The speech has usually taken place, so the question doesn't come up.)
If somebody cracks a safe and gets caught they won't be charged with using a hammer and chisel.
Speech is as incidental to treason as the hammer and chisel are to blowing the door off a safe.
I feel like there are two roles "the first ammendment isn't absolute" plays in discussions. The first is to suggest: well if we recognize some exceptions to the principle of free speech you can't (tho u could) claim that any exception is unjustified so you have to actually debate the costs and benefits of allowing this kind of speech.
I have mixed feelings about this. OTOH it kinda functions as an antidote to our attitude of: whatever the framers said must be right assumption. OTOH it doesn't acknowledge our vast amount of historical evidence that limitations on speech must be approached carefully.
The other place I see it is more of an argument from ignorance: well it has exceptions and I don't know what they are and you probably don't either so maybe this is one of them.
Great stuff, as usual! This is an evergreen piece I look forward to revisiting, quoting, and sending to people who need to learn a thing or two (or three). The one thing I’d add to this list of non-protected speech would be messing with copyright/trademark protections. The court has described copyright fair use (among other things) as a First Amendment “safety valve” (See: Eldred v. Ashcroft) but IP definitely gets its own 1A carve-out that people should talk about more.
Alito used the “fire in a crowded theater” punchline, didn’t he?
The problem is not that exceptions (very narrow) exist to the First Amendment. It’s almost the case that most of the First Amendment lawyers cannot apply the precedents to a case under trial.
“Probably not a 1st Amendment violation,” seems to be a general prognosis, which of course is a safe bet.
To me, a layman, it has become “whatever the SCOTUS says, at the moment.”
I think you do an excellent job of explaining that there are very narrow exceptions and citing the exact words from decisions past.
What would be most helpful would be analysis of cases where the exception is met. Like what would have needed to happen to make Trump or Brooks’s speeches incitement on January 6th.
After Michael 'Hands up, don't shoot' Brown's father told a crowd to burn the whole place down, which they then did; that wasn't considered incitement so you need something stronger than a direct call to action which succeeds apparently.
I don't know, I presumed Eric Holders Justice Dept. under Obama, followed the Law or, were they using political decisions instead of legal ones? I thought I understood what incitement was until then. That lone example makes a mockery of the Jan. 6th committees attempt to get President Trump for the same thing.
I see. So it’s not incitement after all? Which hate crimes statute do you believe applies?
As I recall, the city’s police investigated him for inciting a riot — as you would expect, given the lack of federal jurisdictional hooks. Apparently the DA decided not to charge. Not sure why.
An interesting essay and a lively comment section. I'm curious about the 'obscenity' exception...in the current online era, it seems that what would once be considered obscene language or pictures are now commonplace.Why can't it be argued that intentional Covid disinformation which leads to grave illness or death is an 'obscenity' vs certain unpleasant vulgarities? I understand the 'slippery slope' argument, as well as the 'more speech is the answer" argument. The issue that I see is this simply ignores the very real but decimation of the fabric of our society to preserve the greatest possible amount of speech. With a polarized society, where there is increasingly no social consequences for egregious speech (Covid lies, vaccine lies, hate speech, etc), more speech isn't working.
Great article. Where does “you can’t yell fire in a crowded room” fit in? Incitement? That is the exception I hear most of used to restrain offensive speech.
The problem is sometimes not laziness, it is being oblivious to Schenck, as most non-lawyers are. The quote is catchy, and often the punchline of TV characters.
But there are people who are invoking it differently. If 1A lawyers didn’t dunk on them for their ignorance and actually analyzed when, if ever, would creating a stampede that results in bodily harm by falsely yelling something would not be considered protected by the 1A, that’d be more useful.
That podcast is his best work, I recommend it to everyone.
I applaud your concise and direct explanation of the exceptions to the First Amendment. It would, however, be much more valuable if a significant portion of the adult population in this country was capable of understanding what you wrote or even of understanding how our justice system is supposed to work. Most schools no longer teach "civics," leaving a substantial part of our citizenry ignorant about our form of government and the cleverness of its design. [I recall my high school civics class, although not fondly, but only because the teacher required us to walk down to city hall and listen to some guy who was running for president. When we returned to class, he asked for our reactions. My gut instinct suggested that the guy shouldn't be trusted, and I said so. Yup, I got sent to the principal's office, and you've now deduced that the candidate was Richard Nixon. Probably learned more from that episode than from any other part of that class...]
How have 20 comments gone by and nobody asked you the story of the time your wife went to the mailbox and came back with a letter asking you for child support for a ten-year-old probably named Carlos?
Today we have the technology to prove paternity beyond reasonable doubt. Fathers of any age have a responsibility to support thier children until adulthood. This will settle one of the bigger excuses for convenience abortion.
If children are taught at puberty that they share respinsibility, we may see less promiscuity and fewer abortions.
How in the world are paternity tests supposed to justify the abrogation of bodily autonomy of pregnant people? That doesn't make any sense.
Then there's also the fact that, when abortion is criminalized, unwilling parents increasingly resort to violent attacks against their pregnant partners [1],[2] to either end their partners' pregnancies, or end their lives. Unless we declare that pregnant people are inherently less worthy of legal protection than their pregnancies, criminalization of abortion can't be viewed as a positive development.
[1] https://bmcmedicine.biomedcentral.com/articles/10.1186/s12916-014-0144-z
[2] https://obgyn.onlinelibrary.wiley.com/doi/abs/10.1576/toag.11.3.163.27500
It seemed like a personal affair. I decided I wouldn't pry.
this is 100% correct, yet so was the idea that Roe was settled law.
In other words, the court can, if it wishes, do whatever the f it wants with no consequences.
there is no evidence that the court wants to alter its interpretation of the 1st, but it CAN. and flip you off in the process, just because it feels like it some term
This, exactly.
I think ordinary civilians deserve some compassion about their failure to understand Constitutional interpretation and the First Amendment in particular since we live in a country where the Supreme Court has been taken over by a bunch of religious extremist hacks who have no problem randomly applying law from the Middle Ages to overturn Roe, interfering in a state’s recount of electoral votes to anoint the proper winner . . . While saying “don’t try this at home kids, this train only!” . . . while also finding that government can punish a kid for a “Bong Hits for Jesus” sign and that kids are not free from compulsory drug testing to participate in extracurriculars with no probable cause or even reasonable suspicion of drug use. In other words, the general public correctly intuits that we no don’t have a system of laws so much as rule by a super special counsel of unelected elders, most of whom belong to a distinct minority sect and who got their seats specifically because of their proven willingness to start with the desired outcome and work backwards to find reasoning.
So I have started feeling more compassion for ordinary folks who think that First Amendment exceptions can be created ad hoc. I certainly can’t categorically say that they are wrong.
If it wasn’t obvious, I was trying to make the point that the speech clause of the First Amendment is subject to a great deal of encroachment from the anti-establishment clause and the free exercise clause, which is basically becoming THE FREE EXERCISE (of favored) RELIGIONS CLAUSE and (whisper the clause that used to limit the establishment of religion). The entire abortion law debacle is a particular religious view (hostile) about the role of women and control of reproduction imposed on the entire nation. And when the court, solely through seating enough religious extremists of a certain stripe, completely reverse established law to impose its religious preference on everyone, you can’t blame ordinary folks for not thinking that the free speech clause is all that hard and fast.
"The entire abortion law debacle is a particular religious view (hostile) about the role of women and control of reproduction imposed on the entire nation."
This is a complete lie. You obviously, never read the Opinion, which admitted the Federal Judiciary should have never taken Roe in the first place. Many legal scholars have agreed with this over the decades. If it was imposed on the Nation, why is it still legal in New York, California etc...?
I love how the best story ends up as a mere footnote.
I'll get the AI chatbot on this as soon as the family clears out. It'll be on Post.news as soon as I get a good one.
I'm not a lawyer nor an American, so I'm sure I'm missing something, but from my naïve standpoint I have a hard time understanding this reasoning: "[the court] had found that child abuse is integral to child pornography and therefore it falls into the integral-to crime exception..."
If this summary be correct, then naïvely, it looks as though the court has committed a logical howler: they've observed that crime is integral to certain speech, and concluded that said speech falls under an exception for speech integral to crime. But "A is integral to B" does not imply that "B is integral to A".
What am I missing?
I don't know what you're missing. But, porn is an expression of a sexual act. Even adult porn. So, in the case of adult porn the act isn't illegal but in the case of child porn the act itself (the creation of the media) is illegal.
As a matter of formal logic this statement doesn't make sense:
'But "A is integral to B" does not imply that "B is integral to A"'
Did the court suggest that B is integral to A? Did they imply that porn is integral to abuse?
I think I understand the mathematical expression you're trying to get at, but you aren't expressing it well. Or perhaps they aren't expressing it well in the case law. The crime and the speech are one and the same in the case of child porn. It isn't illegal for two 14 year olds to engage in sex. Or indeed for a 14 year old boy to masturbate (in the case in question this was the filmed act). If it were illegal for 14 year olds to masturbate a great many people would be in jail. The crime is the act of filming it. A further crime is committed when it is distributed. Just as a person who cooks meth commits one crime and then another, separate crime when they distribute it.
There may be an inconsistency in carving out an exception for child porn, but it is narrow and well-defined. That's very much the point of the essay here.
'As a matter of formal logic' I mean that the 2-ary predicate Integral(x,y) is not symmetric, but that the court's reasoning, as summarized, appears to presume that it is.
Incidentally, I have some training as a logician. My doctoral advisor was Penelope Maddy.
I should have said that it doesn't make sense in this context as a matter of formal logic. What I mean is that child porn isn't part of the venn diagram of expression. When the courts say it's integral they do not mean it the way mathematicians mean the word "integral." The court means it in the sense of: A car engine is integral to a car; without the engine it isn't a car.
The logical inconsistency here is not in the union we are discussing. The logical inconsistency is that we do not restraint expression. Except in these narrowly defined cases. And that is rather the point of the essay.
The crush video law is instructive. Fighting dogs for sport is illegal. Having a video of dogs fighting is not. Or it isn't the crime itself. The case of child porn is different because the expression is the crime. That's the logical inconsistency.
Edit: I went back and looked at the text you cite. It is poorly worded. I think it would be helpful not to view it as a logical solution to a problem. It's much closer to an exception that proves the rule (although, it isn't exactly that either). It isn't a content neutral exception and that's what really sets it apart. The court is saying it's the content that is the problem. Although I admit after rereading the text, they used poor language.
"'But "A is integral to B" does not imply that "B is integral to A"'"
Yes, it does. Perhaps you don't understand the word "integral."
It's not a synonym for "implies." It has a different meaning because it's a different word with an entirely different etymology.
You have stumbled into one of those "log off your account when you step away from the keyboard" situations, Knox. Somebody is using your e-mail account to make you look like a fool. You need to get that person under control.
I think the sticky wicket is the way the court is using the word.
If we’re going lay modal logic over legal language we need to be more precise in what we are talking about.
Child porn isn’t integral to child abuse. It is abuse. The confusion arises when we get at a remove from the production of child porn. The case in question isn’t about the production of the porn. It’s about the sale of it. So, the word integral seems like a red herring here. If I understand the distinction you are making it’s that child abuse is integral to child porn but child porn isn’t integral to child abuse? I’m not sure how relevant that is. The line that the court was drawing was between the financial incentives of child porn producers and the consumer and how even if the consumer isn’t involved in the abuse directly one follows from the other.
Trying to interpret constitutional law as a matter of formal logic is a fool’s errand. That’s how we ended up with a second amendment as a defense of gun ownership instead of a defense of the comma.
You're getting there. That's what "integral" means.
That wasn't that difficult, was it? All it took was a moment's thought: you didn't have to make your original silly post.
And if you work at it, you can probably work your sound, but mangled, thought about the Second Amendment into the witticism you clearly want.
How is the superset of child abuse relevant to the exception child porn presents to First Amendment law?
Yeah, I dunno. I'm an American, and not a lawyer. But, this line of reasoning:
"It must be integral to a crime, and child abuse is integral to child pornography. However, animal abuse is not integral to animal cruelty and therefore depictions of animal cruelty do not fall under the umbrella of First Amendment exceptions."
makes me feel like my interpretation is missing some key elements.
I'm not a complete idiot on our laws, just mostly. I find myself lost here.
Otherwise, this is a great article, and I'm bookmarking it for later use.
Ken has another essay on the law about crush videos. I think he wrote it with Prof. Kerr. The problem with the crush videos was that it wasn't content neutral. If I'm remembering correctly. It created a category of disfavored speech. And it was being used as a bludgeon against a guy who wasn't even selling crush videos. I'm probably screwing up the details but that's what I remember from reading the article a year ago or so. You can find it on popehat.com I think.
Edit: So I checked popehat and found an article but it may not be the one I'm thinking of. Here's the one I found:
https://www.popehat.com/2016/11/29/lawsplainer-why-flag-burning-matters-and-how-it-relates-to-crush-videos/
If I get some time I'll try to find the one I was thinking of, or think I was thinking of. I could have sworn Orin Kerr wrote some of it.
In any case, it was a shitty law. Just like the Colorado law about forcing people to build websites for LGBT weddings was a shitty law (in my opinion). The motives might have been pure--actually in the crush video law I think the motives were suspect too--but the law was shitty in application. Reasonable minds can differ on the motives. The laws were shitty.
Thanks for doing the legwork. I'll add it to my nightly reading.
It's possible you're remembering the discussion in his podcast on the episode?
https://www.popehat.com/2018/04/12/make-no-law-podcast-episode-five-crush/
Very possible. Also possible I’m attributing it to Ken instead of someone else. The one I’m thinking about goes into the politician who came up with it and how it was nakedly pandering to public opinion about animal rights.
The line of reasoning that crime is "integral" to production of CP and therefore CP gets an exception to the first amendment is not worth thinking too hard about. You would think CP wouldn't need its own category since it's by definition obscene, and the reason it *does* have its own category is just an accident of history - NY made a law that outlawed CP even if not obscene, and rather than let defendants who had violated that law get off the hook, the Supreme Court created a new category of non-protected speech. As they say, hard cases make bad law. It's really unlikely that the Court will ever apply that same reasoning to widen a hole in the First Amendment.
There are lots of laws that limit speech that aren't in the exception list, for instance perjury, copyright and trademark law, laws of confidentiality, the law of contract (if I sign an endorsement contract, or an NDA, then that limits my speech), espionage law and the laws governing classified documents
That is, if you regard the First Amendment as meaning "any statement made by any person at any time for any reason is absolutely privileged" then consider what the exceptions are to that in court, then they are rather more extensive than the ones that the Supreme Court listed.
When somebody incites a riot, or tries to stop an election from taking place, nobody is trying to stop speech. (The speech has usually taken place, so the question doesn't come up.)
If somebody cracks a safe and gets caught they won't be charged with using a hammer and chisel.
Speech is as incidental to treason as the hammer and chisel are to blowing the door off a safe.
I feel like there are two roles "the first ammendment isn't absolute" plays in discussions. The first is to suggest: well if we recognize some exceptions to the principle of free speech you can't (tho u could) claim that any exception is unjustified so you have to actually debate the costs and benefits of allowing this kind of speech.
I have mixed feelings about this. OTOH it kinda functions as an antidote to our attitude of: whatever the framers said must be right assumption. OTOH it doesn't acknowledge our vast amount of historical evidence that limitations on speech must be approached carefully.
The other place I see it is more of an argument from ignorance: well it has exceptions and I don't know what they are and you probably don't either so maybe this is one of them.
Great stuff, as usual! This is an evergreen piece I look forward to revisiting, quoting, and sending to people who need to learn a thing or two (or three). The one thing I’d add to this list of non-protected speech would be messing with copyright/trademark protections. The court has described copyright fair use (among other things) as a First Amendment “safety valve” (See: Eldred v. Ashcroft) but IP definitely gets its own 1A carve-out that people should talk about more.
Alito used the “fire in a crowded theater” punchline, didn’t he?
The problem is not that exceptions (very narrow) exist to the First Amendment. It’s almost the case that most of the First Amendment lawyers cannot apply the precedents to a case under trial.
“Probably not a 1st Amendment violation,” seems to be a general prognosis, which of course is a safe bet.
To me, a layman, it has become “whatever the SCOTUS says, at the moment.”
I think you do an excellent job of explaining that there are very narrow exceptions and citing the exact words from decisions past.
What would be most helpful would be analysis of cases where the exception is met. Like what would have needed to happen to make Trump or Brooks’s speeches incitement on January 6th.
After Michael 'Hands up, don't shoot' Brown's father told a crowd to burn the whole place down, which they then did; that wasn't considered incitement so you need something stronger than a direct call to action which succeeds apparently.
Okay, so what else needed to happen in *that* instance for Brown's father to have been indicted for incitement?
I don't know, I presumed Eric Holders Justice Dept. under Obama, followed the Law or, were they using political decisions instead of legal ones? I thought I understood what incitement was until then. That lone example makes a mockery of the Jan. 6th committees attempt to get President Trump for the same thing.
Jeff, what would be the basis for federal jurisdiction? I assume you have one because you asserted it was the feds who failed to charge.
Racial hate crimes.
I see. So it’s not incitement after all? Which hate crimes statute do you believe applies?
As I recall, the city’s police investigated him for inciting a riot — as you would expect, given the lack of federal jurisdictional hooks. Apparently the DA decided not to charge. Not sure why.
Appropriate to use the metaphor of "children of highly unlikely provenance" here on Christmas Eve
An interesting essay and a lively comment section. I'm curious about the 'obscenity' exception...in the current online era, it seems that what would once be considered obscene language or pictures are now commonplace.Why can't it be argued that intentional Covid disinformation which leads to grave illness or death is an 'obscenity' vs certain unpleasant vulgarities? I understand the 'slippery slope' argument, as well as the 'more speech is the answer" argument. The issue that I see is this simply ignores the very real but decimation of the fabric of our society to preserve the greatest possible amount of speech. With a polarized society, where there is increasingly no social consequences for egregious speech (Covid lies, vaccine lies, hate speech, etc), more speech isn't working.
Great article. Where does “you can’t yell fire in a crowded room” fit in? Incitement? That is the exception I hear most of used to restrain offensive speech.
I believe Ken's point is that it doesn't fit in. It's generally used as a lazy invocation of an out-of-context quote. His best explanation is probably from his Make No Law podcast episode about it, for which there is also a transcript. https://legaltalknetwork.com/podcasts/make-no-law/2018/06/fire-in-a-crowded-theater/
Yes, that is consistently Ken’s point.
The problem is sometimes not laziness, it is being oblivious to Schenck, as most non-lawyers are. The quote is catchy, and often the punchline of TV characters.
But there are people who are invoking it differently. If 1A lawyers didn’t dunk on them for their ignorance and actually analyzed when, if ever, would creating a stampede that results in bodily harm by falsely yelling something would not be considered protected by the 1A, that’d be more useful.
That podcast is his best work, I recommend it to everyone.
Exactly this!
A lovely holiday gift to your fans/followers. Thanks.
Once again your pearls of wisdom, what a gift you truly are!