Alito and the 1st amendment

[GMDino]

Oy.

When I read about this earlier today I thought maybe it was a misquote, or even made up.

Oy!

pic.twitter.com/UTxB9WgHsW

— Bad Legal Takes (@BadLegalTakes) October 27, 2022

 


I mean, he's a SC Justice...he should know better.  But then he's the guy who over turned Roe V Wade so maybe he just isn't that good at understanding law?


https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

Quote:First, it's important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements.

Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU's Gabe Rottman explains, "It did not call for violence. It did not even call for civil disobedience."


The Court's description of the pamphlet proves it to be milder than any of the dozens of protests currently going on around this country every day:

Quote:It said, "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights."

The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a "clear and present danger" to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.

Two similar Supreme Court cases decided later the same year--Debs v. U.S. and Frohwerk v. U.S.--also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. (Read Ken White's excellent, in-depth dissection of these cases.) Together, the trio of rulings did more damage to First Amendment as any other case in the 20th century.


In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).



Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as thefinal word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it's "worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech." Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, "the most famous and pervasive lazy cheat in American dialogue about free speech."

[Sociopathicsteelerfan]

Wow, you really need to get off Twitter, or maybe stay on it now that Musk bought it. He literally used one example that you don't like and now he doesn't know what he's talking about? Let me clue you into something, what he's doing here is using a commonly understood term/definition of what is not covered under the 1st amendment. In so doing he also lists the broad general categories under which speech is not protected. So, instead of couching everything in legalize not easily understood by a layperson he's using analogies they are familiar with.


In short this is a failed thread and you should feel bad for posting it.

[Sociopathicsteelerfan]

Since you like Twitter so much, here's a response to the thread you posted that rather summarizes why your take on this is so poor.

https://twitter.com/BlueStTrav/status/1585679163444314114

Quote:Travis
@BlueStTrav
Replying to 
@ThisGraySpirit
 
@BFT_Neelix
 and 
@BadLegalTakes
I still don't get why the legal types go off every time it is said (apologies to Ken). Can't we all just accept that people use this term as shorthand for speech “directed to inciting or producing imminent lawless action,” AND “likely to incite or produce such action.”
10:05 AM · Oct 27, 2022
·Twitter Web App

[Belsnickel]

(10-27-2022, 09:53 PM)Sociopathicsteelerfan Wrote: Since you like Twitter so much, here's a response to the thread you posted that rather summarizes why your take on this is so poor.

https://twitter.com/BlueStTrav/status/1585679163444314114

Yeah, I follow BLT and Ken (@popehat) and appreciate both of their takes on many many things. That being said, both of them tend to go off on that too harshly. I will say, though, that the problem with this argument is that I would wager the majority of people who use that phrase don't actually understand it to mean what @BlueStTrav is saying there. I think that the example has become so overused that there are a lot of people that don't understand it in the way it was originally intended.

[CarolinaBengalFanGuy]

(10-27-2022, 09:49 PM)Sociopathicsteelerfan Wrote: Wow, you really need to get off Twitter, or maybe stay on it now that Musk bought it. He literally used one example that you don't like and now he doesn't know what he's talking about? Let me clue you into something, what he's doing here is using a commonly understood term/definition of what is not covered under the 1st amendment. In so doing he also lists the broad general categories under which speech is not protected. So, instead of couching everything in legalize not easily understood by a layperson he's using analogies they are familiar with.


In short this is a failed thread and you should feel bad for posting it.

I don’t know how some of these guys have time to do anything else but read Twitter posts and news stories 24/7

[GMDino]

(10-27-2022, 09:49 PM)Sociopathicsteelerfan Wrote: Wow, you really need to get off Twitter, or maybe stay on it now that Musk bought it.  He literally used one example that you don't like and now he doesn't know what he's talking about?  Let me clue you into something, what he's doing here is using a commonly understood term/definition of what is not covered under the 1st amendment.  In so doing he also lists the broad general categories under which speech is not protected.  So, instead of couching everything in legalize not easily understood by a layperson he's using analogies they are familiar with.


In short this is a failed thread and you should feel bad for posting it.  

Oh...no...SSF disagrees with my post. 

Whatever will I do? 

Back to the topic a SC justice even mentioning it is stupid.  The phrase is more worthless now than when it was said.

"Easier to understand" doesn't mean jack if it is also just plain wrong.

"The election was rigged!" is easy to understand...and wrong. 

My bad was assuming people would care that Alito should know better.

[Dill]

(10-28-2022, 09:25 AM)GMDino Wrote: Back to the topic a SC justice even mentioning it is stupid.  The phrase is more worthless now than when it was said.

"Easier to understand" doesn't mean jack if it is also just plain wrong.

"The election was rigged!" is easy to understand...and wrong. 

My bad was assuming people would care that Alito should know better.

I think that's what Bels may have been alluding to.

 
People already have a pre-understanding--or "common understanding" --of the "crowded theatre" meme
 
and Alito's reference more activates that already held assumption 
 
than it explains a legal standard "without legalese."

[Sociopathicsteelerfan]

(10-28-2022, 09:25 AM)GMDino Wrote: Oh...no...SSF disagrees with my post. 

Whatever will I do? 

Back to the topic a SC justice even mentioning it is stupid.  The phrase is more worthless now than when it was said.

"Easier to understand" doesn't mean jack if it is also just plain wrong.

"The election was rigged!" is easy to understand...and wrong. 

My bad was assuming people would care that Alito should know better.

No, sorry.  This is just another example of you scanning Twitter for anything that you perceive as making your ideological opponents look bad.  It's low effort and adds nothing of substance.  This is why it got zero engagement other than my calling it out and Bel adding an important response to my criticism. 

With Musk taking over Twitter do you think it'll be harder for you to find thread topics or tweets to post?

[StoneTheCrow]

(10-28-2022, 11:51 AM)Sociopathicsteelerfan Wrote:  

With Musk taking over Twitter do you think it'll be harder for you to find thread topics or tweets to post?

Lol, no. Not as long as these people are out there. Their bravery knows no limits.

Stay. Hold your ground like a Ukrainian.

— Tristan Snell (@TristanSnell) October 28, 2022

[GMDino]

(10-28-2022, 11:59 AM)StoneTheCrow Wrote: Lol, no. Not as long as these people are out there. Their bravery knows no limits.

Stay. Hold your ground like a Ukrainian.

— Tristan Snell (@TristanSnell) October 28, 2022

Guys like that are as bad the ones who put all over twitter that they were leaving for Truth Social or Parler...and never did.

I think what you'll see is Musk allow everyone back on because it want's the platform to have "free speech".  And as the owner he's perfectly allowed to allow on whomever he wants no matter what they say.

So we'll see a rise in racism, hatred, actual fake news, etc.  Things the former owners tried to wean out. Which was their right as owners also.

We'll also see Musk slamming anyone he doesn't like because he's never been good at accepting free speech aimed at him or any criticism.

He's just a boy with a new toy.

But to answer the other question I'll still read it as often as possible and share things I think are interesting.

1) Because I enjoy doing that.
2) Because apparently they whole "he spends too much time here" thing still is bug up people's behind and that amuses me. 

[GMDino]

(10-28-2022, 10:51 AM)Dill Wrote: I think that's what Bels may have been alluding to.

 
People already have a pre-understanding--or "common understanding" --of the "crowded theatre" meme
 
and Alito's reference more activates that already held assumption 
 
than it explains a legal standard "without legalese."

But that is not the legal standard.  It wasn't when it for first said and it certainly isn't now.

It's dumb catchphrase that literally means nothing legally.

[Dill]

(10-28-2022, 12:42 PM)GMDino Wrote: But that is not the legal standard.  It wasn't when it for first said and it certainly isn't now.

It's dumb catchphrase that literally means nothing legally.

Sure. I'm agreeing with you.

As stated by Alito, it is more of a Rorschach blot onto which
we can project our own meaning as the legal one

[GMDino]

In reference to the Twitter post above, here's a good example.

Kanye is free to make all the antisemitic rants he wants.  

f the site hosting him wants to allow it they can.

Twitter did not...until Musk stepped in.

https://t.co/3PeQUWunTb

— Duty To Warn ? (@duty2warn) October 28, 2022

So now, for now, Kanye can make all the antisemitic rants he wants on Twitter also.

AND users of the app can block or mute him for being antisemitic. 

And a large number of users will be happy that there is now more antisemitic posts on Twitter because they agree with him.

It's a free country...but you get what you pay for.

[SunsetBengal]

(10-28-2022, 01:52 PM)GMDino Wrote: So now, for now, Kanye can make all the antisemitic rants he wants on Twitter also.

AND users of the app can block or mute him for being antisemitic. 

And a large number of users will be happy that there is now more antisemitic posts on Twitter because they agree with him.

It's a free country...but you get what you pay for.

Exactly, people are free to express their opinions without fear of censorship, but nobody is required to stand there and listen to them.

[Sociopathicsteelerfan]

(10-28-2022, 02:04 PM)SunsetBengal Wrote: Exactly, people are free to express their opinions without fear of censorship, but nobody is required to stand there and listen to them.

But that's a threat to our democracy!!!!

[*Nately120*]

(10-28-2022, 01:52 PM)GMDino Wrote: In reference to the Twitter post above, here's a good example.

Kanye is free to make all the antisemitic rants he wants.  

f the site hosting him wants to allow it they can.

Twitter did not...until Musk stepped in.

https://t.co/3PeQUWunTb

— Duty To Warn ? (@duty2warn) October 28, 2022

So now, for now, Kanye can make all the antisemitic rants he wants on Twitter also.

AND users of the app can block or mute him for being antisemitic. 

And a large number of users will be happy that there is now more antisemitic posts on Twitter because they agree with him.

It's a free country...but you get what you pay for.

What a culture we have here where the men who most embody "success" via the accumulation of billions of dollars of wealth spend as much time shitposting and arguing on the internet as broke ass losers like me.

I'm way ahead of the game, here.

[Sociopathicsteelerfan]

(10-28-2022, 02:17 PM)Nately120 Wrote: What a culture we have here where the men who most embody "success" via the accumulation of billions of dollars of wealth spend as much time shitposting and arguing on the internet as broke ass losers like me.

I'm way ahead of the game, here.

Well, except for the having billions of dollars part.  When you get there do let me know and hook a brother up.

[CJD]

I've always viewed the shouting fire in a movie theater thing to be short hand for "maliciously and knowingly inciting undue panic that is likely to cause harm or damage."

I didn't even personally know there were actual cases behind it haha.

A SC justice should know the history of it and know better etc, but since it has become such well known short hand, I imagine he was appealing to the common person with that statement rather than the legal scholars.

[*Nately120*]

(10-28-2022, 02:18 PM)Sociopathicsteelerfan Wrote: Well, except for the having billions of dollars part.  When you get there do let me know and hook a brother up.

Maybe this is just loser talk, but seeing how people like Trump, Lindell, Kanye, and Elon Musk spend their time and interact with people makes it pretty clear admiring someone for having billions is like admiring someone for having a crippling heroin addiction.

We are a pretty insane culture where we all seemingly long to be famous, yet have a crippling fear of public speaking in the most low-key of settings.  I'm getting off topic here, but lordy...you'd think being nuts came with a huge price tag the way the ultra rich and famous spend their time these days. 

[Sociopathicsteelerfan]

(10-28-2022, 02:22 PM)Nately120 Wrote: Maybe this is just loser talk, but seeing how people like Trump, Lindell, Kanye, and Elon Musk spend their time and interact with people makes it pretty clear admiring someone for having billions is like admiring someone for having a crippling heroin addiction.

We are a pretty insane culture where we all seemingly long to be famous, yet have a crippling fear of public speaking in the most low-key of settings.

Oh, I agree.  Accumulation of wealth, especially once you reach a certain point is not exactly a herculean undertaking.  There are very few people in the public square that I would say I admire.  Being a billionaire is certainly not a prerequisite.