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Jim Lane

(11,175 posts)
7. A brief lecture on the First Amendment
Tue Aug 15, 2017, 10:32 PM
Aug 2017

Consider two cases:
* A demagogue ranting at a crowd persuades them to storm a jail, overpower a handful of outnumbered LEOs, and seize and execute a despised prisoner. (This is how Joseph Smith, the founder of the LDS Church, actually died.)
* Someone writes a newspaper op-ed denouncing abortion as murder and calling for drastic restrictions on it. An unhinged person reads the op-ed and that's the final straw leading him to bomb a Planned Parenthood clinic.

In each case we have speech, we have criminal violence by someone who agrees with the speaker, and we have a causal connection between them. Should the two cases therefore be treated identically?

The answer, as it has developed in American law over the decades, is No. It has generally seemed reasonable to prohibit the speech in the first case. On the other hand, it has generally been thought that freedom of speech would be too greatly curtailed if "this might lead to violence at some point" were accepted as a sufficient basis for making the speech illegal.

The difference has been given different formulations, such as "a clear and present danger to public order." The general idea is that the danger must be imminent, and not speculative along the lines of "this might happen." Obviously this isn't a bright-line test. There could be a series of intermediate cases between the two I described, with the strength of the justification varying along a continuum, and there would be some where even judges who agree on the test to be applied disagree about whether this case meets it. Still, no one has come up with anything better.

The German law described in the OP wouldn't be a tough case. In the United States it would easily be deemed to go way too far in suppressing speech. If it somehow got to the Supreme Court, there would be a 9-0 decision striking down the law.

My personal belief is that our current First Amendment jurisprudence is, in this respect, fundamentally sound. There are probably quite a few people here who would disagree. I'm not going to bother trying to persuade them. I'm just trying to answer your question about the constitutionality of a law suppressing the use of Nazi (or Confederate) symbols.

Very nice 10,000th leftstreet Aug 2017 #1
What happened bdamomma Aug 2017 #2
I agree with you. Maven Aug 2017 #3
I expressed this same sentiment here the other day stopbush Aug 2017 #4
i get huffy bora13 Aug 2017 #23
I agree -- it is AT BEST incitement obamanut2012 Aug 2017 #5
A brief lecture on the First Amendment Jim Lane Aug 2017 #7
I read not one word of that -- I neither want nor need your lecture obamanut2012 Aug 2017 #8
Uh, just whom do you think I was patronizing? Jim Lane Aug 2017 #10
+1 onenote Aug 2017 #11
I'm not completely satisfied that this is truly a settled question. Stonepounder Aug 2017 #17
You're right that it's not fully settled. There are always gray areas. Jim Lane Aug 2017 #34
I read it. Chellee Aug 2017 #22
Well I am over the first amendment then. Tumbulu Aug 2017 #24
Let me suggest a broader view of the history of the First Amendment. Jim Lane Aug 2017 #35
It really does not matter what I think about it Tumbulu Aug 2017 #37
I agree with you leanforward Aug 2017 #6
Excellent 10,000 Post burrowowl Aug 2017 #9
Great post. Thanks for the info. oasis Aug 2017 #12
When Hitler said "we lost the war; but shall win the peace," sandensea Aug 2017 #13
Please provide a source for that quote. n/t PoliticAverse Aug 2017 #27
I am Germany right now... a la izquierda Aug 2017 #14
And we are equally puzzled, but witnessing a phenomenon: lambchopp59 Aug 2017 #30
It seems to me that is has been going on for three decades Tumbulu Aug 2017 #38
Congrats and thank you for your 10,000th post! smirkymonkey Aug 2017 #15
Here is the problem with that approach marylandblue Aug 2017 #16
Section 86a does not ban specific symbols outright Lithos Aug 2017 #19
And yet far right white nationalist parties have more electoral success Germany than in the US funflower Aug 2017 #18
That's because we don't have a 2-party system in Germany Ezior Aug 2017 #36
Bless you and your family, and congrats on 10,000th post SWBTATTReg Aug 2017 #20
K&R... spanone Aug 2017 #21
I've long argued that this country needs a serious discussion about destructive propaganda Oak2004 Aug 2017 #25
Agree! Thanks for posting ! Tumbulu Aug 2017 #40
"I believe the US Congress should pass a law that bans these symbols and salutes from being used" PoliticAverse Aug 2017 #26
This situation raises some really difficult questions. The Velveteen Ocelot Aug 2017 #28
Agree! Tumbulu Aug 2017 #41
I sure agree with you about how very fast things in this country have gotten worse. PatrickforO Aug 2017 #29
WHISIS lambchopp59 Aug 2017 #31
There is a legal maxim: marybourg Aug 2017 #32
We can pass laws all day long Phoenix61 Aug 2017 #33
Thank you for making this your 10,000th post. MineralMan Aug 2017 #39
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