Back in 1919, in the Schenck v. United States decision, Justice Oliver Wendell Holmes reasoned that Schenck’s right to speech was not protected under the First Amendment because:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
In 1969, the decision in Brandenburg v. Ohio limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action.
Today, in March 2021, we are hearing a lot about the right of free speech in re the January 6 insurrectionists and their supporters, and the right of certain persons of a certain political bent to express their uncensored views on social media.
Justice Holmes’ use of the word falsely was not an accident. It spoke to the heart of the issue. In the lead up to, and on the day of, the January 6th insurrection, Trump used claims of voter fraud that he knew to be false to incite an insurrection. The First Amendment, under neither of the two decisions, Schenck nor Brandenburg, protected him. What Trump did was every bit as dangerous as falsely yelling fire in a crowded theatre.
Over the years, Facebook has allowed the posting of incendiary information on Facebook that it knew to be false while claiming it rights to do so were protected under the First Amendment. A dubious claim, at best.
Of late, Senator Ted Cruz, TX, has become very concerned about his First Amendment rights; specifically, about the rights of he and his fellows travelers to post things known to be false on Facebook and other social media. Also, of late, Senator Cruz has been very worried about Congress taking away First Amendment rights granted by the Citizens United decision to the very wealthy to buy elections; diminishing the rights of the people to elect their government by giving the very wealthy disproportionate power to determine the outcome of elections.
In September 2020, Senator Tom Cotton, AR, says on twitter that, “The First Amendment protects your right to worship. End of Story.” The month before, Senator Cotton and Senate colleagues McConnell, Cramer, and Loeffler had introduced the Campus Free Speech Restoration Act, a bill to protect the First Amendment rights of University students; to free speech one assumes. Lot going on at the time, no doubt, no worry. But, be assured, Senator Cotton does think about The First Amendment a lot of the time.
Senators Cruz, Cotton, and Mike Lee, UT are all very concerned about control of content by Facebook, Twitter, et al; feeling that that these social media companies are denying conservatives like themselves their right to free speech granted by the First Amendment. Senator Lee is quite sure that the social media companies never censor liberal content; only conservative. He gives President Obama and President Trump, Republican Senators and Democratic Senators as example; doesn’t mention the falsely part.
Does the First Amendment grant a politician, anyone, the right to say, to broadcast in an any way, something false? Did Donald Trump really have a constitutional right to tell those 30,000 lies? To broadcast them via any and all forms of media?
Leaving aside Holmes’ crowded theatre and the possible consequences of falsely yelling fire therein; does the First Amendment grant the right to false speech? Does the First Amendment grant Fox News the right to broadcast lies during an election year? Lies that may cause great harm at any time? Does the First Amendment grant any media the right to propagate lies at any time? Did QAnon have a constitutional right to broadcast the lie that Hillary Clinton was running a pedophile ring out of a pizza shop? Did Facebook have a constitutional right to help propagate such a lie? Is the First Amendment to conservatives what the Second was to the NRA? (Just think what Justice Scalia could have done with the clauses, the whole of the First Amendment, given the opportunity.) Does the First Amendment give each of us citizens the right to tell bald-faced lies?
No doubt, the intention of the — or abridging the freedom of speech, or of the press — clause of the First Amendment was to allow for the free flow, free discussion, of ideas. As we have learned, all too well of late, lies are not conducive to discussions. Never were.
Can the First Amendment be applied to such as reality? Does everyone have a right to posit, to broadcast, their own reality under the First Amendment? To whose possible benefit is the right to just make stuff up? To counter facts with stuff that was made up?
If any of these questions make it to the Supreme Court, what will today’s Bush/McConnell/Trump Supreme Court have to say on the meaning of the First Amendment in re free speech?
Trump and his acolytes violated Article III section 3 of the US Constitution. Constitutional originalism seems appropriate for them. I prefer public executions for treason myself as it makes a clear statement.
IOW, don’t let them control the discussion. Allowing them to hide treason behind the 1st Amendment is silly legal strategy. Sure, they had every right to say what they said. Now we have every right to hang them high in public execution. Give them their first amendment last rights on the gallows.
Comments eating dog strikes again?
Dog gone dog!
A few days before the election, I and millions of others found a slick newspaper on the steps before the house. This in a fortunate suburb community. The newspaper, which even featured a front page article column by a writer who has written for the New York Times, was aimed at the destruction of China, literally aimed so.
The paper was delivered all through my community, and just having found such a paper was frightening. I have no idea at all what might be done.
I am rather worried about the lies and insanity from the Right myself. But I am even more worried about the Left calling for executions for the lies and insanity they don’t like.
maybe we still have a hope of defeating lies and insanity without turning ourselves into just another tyranny.
I recommend you all google Schenk v US, and follow the link from there to Debs v US
And note who the Free Speech “exceptions” have been applied to.
Then think about how you personally would ever know for sure the facts in any future case, or how the rest of the people would respond to the charges of “treason” offered by the government. We executed the Rosengergs for treason. It is entirely possible their “treason” prevented the US from using its nuclear power to defeat the USSR in a preemptive war “before they could get a Bomb of their own. We executed four German “spies” who were sent by their Leaders to perform acts of sabotage on this country during WWII….when they abandoned their “mission” the minute they set their feet on American soil.
we already have no assurance that the Court will respect “free speech” when it sees its (probably quite imaginary) interests at stake. but we have a fighting chance while Free Speech is honored at least as a sacred right.
We will have no chance once the Left is seen as ready to abandon Free Speech when what it sees as its interests at stake.
Like a number of other issues that have come up here on AB… as well as everywhere else.. we need to think our way through our emotions when we lose an election, or see a chance do our enemies in the eye, and seize on the handiest “reason” we can see for our loss, or excuse to deny our enemies the Rights we demand for ourselves. what we sow, so shall we reap.
Trump and Trumpism is dangerous. But we can defeat him (it) without becoming our Enemy.
Free speech is one thing whereas acting against our government beyond its institutional provisions to overturn an election is quite another. There can be only be one national government at a time for any sovereign. Revolution is fine for the revolutionaries if they win, but revolution in the form of an attempt to derail or takeover the existing government is treason.
In this respect I am not of the Left, but in general I am not of the Left either. My background is systems theory with history as my guide on matters of state. You can be pretty sure that Liberals have no stomach for public execution. However, if the shoe was on the other foot, then results might vary. However, I will grant that Liberals played Russia-gate after 2016 for more than it was actually worth.
Choices have consequences. Bullies learn to use intimidation where they can do so without consequences. Life is full of choices.
“…not of the Left…”
[I was raised from a hatchling to distrust Republicans and then in 1968 I broke away from the Democratic Party and establishment liberals as an activist although I still cast my vote for them lacking any other reasonable alternative.
BTW, someone please put that dog in a pen.]
Don’t be so sure that the Left has no stomach for executions. I agree with you about bullies, and the fact that no government will tolerate “treason.”
But I think Trump and some Republicans can be prosecuted for treason without ever mentioning speech. Trump’s speech was “perfect” just like his phone call to Ukraine. Just like Mark Antony came to bury Caesar not to praise him. The treasonous incitement to riot is another matter.
Lincoln was careful not to call Secession treason, or prosecute the officers, much less the common soldiers of the Confederacy.. because he was smart enough to see that we still had to govern a united country. And, I think, to realize that prosecutions for treason as a way of governing could come back to him if the other side regained power… as it has.
I was raised… as a Republican, though the subject was never mentioned…. and also (incidentally) as an atheist, though the subject of religion was never mentioned, for or against. But my family voted Republican… in Chicago, where the R’s were the honest party and the first to notice the importance as well as the beauty of the “environment.”
When I got old enough to pay attention, I sort of became a Democrat, mostly on Civil Rights issues… no credit to me, except I was sensitive to justice and decency by that time… as was my mother and most people my age that I knew. Vietnam came along in time for me to realize their was no safety in Democrats. Been drifting so far left since then that I can see California from here by looking toward the East (right on most maps).
(also incidentally, did I mention that I eventually got smart enough to see that atheism was just another religion, and not a very intelligent one at that.)
“Not through eastern windows only comes the light.”
when i first read “not by eastern windows only…” it was being quoted in a novel (i think “The Rolling Years” but that was a very long time ago) by a Christian minister of some denomination urging his flock to not reject the insights of someone who might happen to be a member of another denomination.
The novel might have been popular in its time (i don’t know) but it was when i read it no longer in fashion. I asked a Literature professor why that was. He never answered me.
I understand the Bears are having a hard time with that dog. Be patient.
I cannot say that you are wrong. There is a difference between open mindedness and submission. I am good at the first and terrible at the second.
good lord. where did I recommend submission?
No, not your recommendation, but then history tells us that the sword is mightier than the pen, regardless of what is said. OTOH, war never ends well even for the victors unless the victors get to lay waste to someone else’s backyard rather than their own.
IOW, nothing is more uncivil than civil war.
Cache for clunkers :<)
Taking a knife to a gunfight is a bad idea, but taking a pen (euphemistically speaking) to a gun fight is even a worse idea.