Sunday, August 10, 2008

Guest Post from Joe-the-Math-Guy

I read up on a few 1st amendment cases on which the Supreme Court has ruled, and I thought I would comment on this free speech thread. I am getting some of the information on these cases from Wikipedia, so feel free to take it with a grain of salt.

The "clear and present danger" language that PG uses apparently comes from the case that fausto referred to: Schenck v. United States, 249 U.S. 47 (1919). During World War I, Schenck had distributed literature opposing the military draft to men eligible for the draft. The Federal Government held that this violated the Espionage Act of 1917. The Supreme Court upheld Schenck's criminal conviction unanimously, with Holmes writing the opinion. Holmes' "clear and present danger" standard reads as follows:

"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."

The "substantive evil" in this case is obstruction of the recruiting or enlistment service during a time of war. I read through the opinion and could not find a general criterion for determining which things these "substantive evils" are. I may be being somewhat unfair to Holmes and the other justices, but to me the content of this seems to be: your freedom of speech can be curtailed whenever, in the view of the government, your speech would lead to bad results.

I am very sorry for the innocent people who were killed, but in my view the 1st amendment must have more force than that.


The Supreme Court's interpretation of the 1st amendment has been considerably liberalized since the Schenck ruling. As far as I can tell, PG's interpretation is indeed the interpretation currently in force, but that is a fairly recent thing. The key here is "imminent lawless action," not "clear and present danger." The key case was Brandenburg v. Ohio, 395 U.S. 444 (1969).

Clarence Brandenberg was an Ohio KKK leader who had been convicted of advocating violence under an Ohio Criminal Syndicalism statute.
During a KKK rally, Brandenburg had called for "revengeance" against "niggers," "Jews," and those who support them. The Supreme Court, under Chief Justice Earl Warren, reversed the conviction. Justices Black and Douglas wrote concurring opinions. The view here was that inflammatory speech could not be punished unless it is directed to inciting and likely to incite imminent lawless action. I think that the "imminent" aspect gets at what PG was referring to when she indicated that the victims have to be concretely specified and available at the time the speech is occurring.

This is just about the most absolutist interpretation of the 1st Amendment I could imagine. I am delighted at the thought that this is not some fantasy of the way our country might be run, or should be run, or maybe somehow someday could be run, but rather simply the rules down on paper for how it is to be run right this minute. Most certainly we should not give this up for a security that surely would be temporary and illusory.

If it is saddening to think that the 1st Amendment protects the likes of Hannity and Coulter, please keep in mind that it might well be the single most substantial piece of legislation protecting you--from them.
Joe the Math Guy

(JTMG put this in the comments today and I liked it and asked him if I could make it a guest post.  He kindly agreed.  He's an old friend of mine and wicked smaht.)

"Friends? Hah. These are my only friends. Grown-up nerds like Gore Vidal.  And HE's kissed more boys than I ever will."

--Lisa Simpson


Lois said...

This is a great post. Thank you.

ogre said...

It is a great post.

The view here was that inflammatory speech could not be punished unless it is directed to inciting and likely to incite imminent lawless action. I think that the "imminent" aspect gets at what PG was referring to when she indicated that the victims have to be concretely specified and available at the time the speech is occurring.

I think that there's a dangerous assumption there. It's conflating "imminent" with "concretely specific."

I suspect that getting closer to an absolute line is not reasonable and that judgment will have to play that role in cases in the future. But the idea that "concretely specific" (which to me means named clearly, or identified in a clear way) is equivalent to "imminent" (meaning "going to happen in the quite near term) is just off the mark.

It appears to me that the Warren Court rejected the idea that a call for 'revenge' on concretely specific groups fell outside the protection of the 1st Amendment. Yet each of those groups is clearly identified in ways that essentially anyone understands, and both groups have long been the targets of violence from such people.

So there's a threat that is plausible and targets clearly identifiable groups. The Court's overturning the conviction asserts that it has to be reasonably imminent. Knowing that racists have attacked people, and being aware that they seem entirely willing to do so again in the future doesn't cut it. The threat has to have some immediacy.

"Someday, someone ought to just blow up those folks in that (specific) UU church" would appear not to cut it. It's absolutely clear who the target is, but there's no immediacy.

However... if someone then goes and acts in accordance with that, it would seem -- to me -- reasonable to hold the speaker accountable. That doesn't create a prior, chilling imposition on free speech; it does suggest that if you're using language which is likely--in a reasonable person's view--to instigate and encourage criminal behavior, then you're at risk if someone acts on it.

This provides the advantage of encouraging a certain prudence in speech, and of getting judges out of the business of deciding if a speaker has actually gone too far, or merely was hanging ten. It's ok if it doesn't provoke action--but if it does, then it was actually, demonstrably provocative... and accountable.

I don't think that any of the Radio Rwanda folk's books would qualify as having crossed that line. Not unless they were talking about shooting up liberal churches.

Freewheel said...

"I may being unfair to Holmes..."

Yes, actually you are. To understand the evolution of 1st Amend law, you have to keep reading beyond Schneck. Justices Holmes and Brandeis (interestingly, a unitarian and a jew) began dissenting in 1st amend. cases. Read those dissents, which are very eloquent, and you'll understand that, in the end, Holmes had a much broader view of 1st amend. protections.

Joe The Math Guy said...

Hello Ogre,

By "concretely specific" I mean in contrast to general. So, for example, Ogre, Freewheel, and Joe-the-math-guy is a concrete collection of people. If someone says, "Those guys are just a bunch of liberals--let's go kill them," then he is advocating an actual criminal act. It is reasonable, in the right circumstances, to regard such advocacy as being itself criminal. On the other hand, suppose someone says, "The UU'ists are just a bunch of liberals and we ought to kill them." "UU'ist" is a clearly specified group, but it is an abstraction--it is an open-ended group subsuming thousands and thousands of people across tens of thousands of miles and many, many centuries in the past and future. There is no way that this person could carry out this action--in fact, it isn't even clear what the action would be. What he is saying is just rhetoric and he knows that. It's vile, but it's just rhetoric until he specifies which UU'ists he is talking about.

This is where I see the connection to imminence. A criminal action can't be imminent until the victims are concretely specified--you have to point to them, or list their names, or tell the killers where they live. In some way you have to say which specific people you are talking about and how to get at them. Saying "the UU'ists" or "the niggers" or "the Jews" just doesn't do that.

Suppose someone says, "Someday, someone ought to just blow up those folks in that (specific) UU church" to a nut with access to dynamite, an itch to use it, and a hate-on against liberals. Suppose further that the speaker knows these things and is deliberately trying to incite the nut to action. I could see punishing that as a crime, even if the nut winds up not dynamiting the church. The speaker was deliberately trying to bring about a crime. Granted, in practice that would be very hard to prove.

On the other hand, suppose the speaker was just ranting and the nut overhears him. If the nut actually carries out the deed, then I would say that the speaker is not legally responsible as long as he did not intend to actually provoke the action and did not know that there was a nut nearby who would be willing to actually carry out the dynamiting. However, as PG suggested, he is DEFINITELY responsible MORALLY. I know that that is pretty cold comfort for the dead and the bereaved.

PG said...

"I know that that is pretty cold comfort for the dead and the bereaved."

Maybe, but I think that the over-reliance on legal penalties, and attendant retreat from belief in purely moral responsibility is a bad thing for our society. There is a relatively limited set of actions that ought to be punishable by law. There is a much larger set that should be met with boycotts, firings from the private sector, cold shoulders, and other signs that the action is disapproved even if it is legal.

Joe The Math Guy said...

Hi PG,

I totally agree. I think I ended that the way I did because the concept of morality is so frequently treated as inconsequential or childish in our culture: if the government doesn't punish you for it, you must be ok. In many contexts, a person making the kind of comments I described would experience minor or no consequences. Most people in our culture would regard ostracizing him as silly. Firing him from a job, ironically, might well get you hit with a lawsuit for violating his freedom of speech.

The problem, as I think your comments hint, is an over-reliance on legal solutions and an under-reliance on individual judgment: intellectual judgment, to decide whether an idea is true or not, and moral judgment, to decide the character of a person and how to treat that person accordingly.

These days we seem to be doing pretty well as far as intellectual judgment. Each person is free to speak her mind on any subject; the only limit is that you cannot use speech to deliberately incite crime.

But moral judgment is looked down upon, at least when performed by an individual. It is regarded as the province of the government; I think that that is why people feel that the government should punish "hate speech" in the first place. That cedes to the government the responsibility of the individual to morally judge her fellows, and then act.

Joe The Math Guy said...

Hi there Freewheel. I had read a bit about some of the cases that Brandeis and Holmes concurred on, and after your posting, I read alot more. For right now I have focused on Whitney v. California, 274 U.S. 357 (1927), which seems to have been a key intermediate step between Schenck and Brandenberg. My point, though, was that Holmes' original standard of "clear and present danger" amounted to: if the government thinks that it might lead to something bad, you can't say it. I realize that this is somewhat (ok, a lot) pejorative, but it also seems to me to be fairly accurate. That was pretty much how the majority ruled in Whitney, and they based their ruling on Schenck.

I understand that in Brandeis' minority opinion, Brandeis strongly argues that the government may NOT always stop speech even when it could lead to substantive evils(in the government's opinion.) He introduced the idea that some evils justify action to stop speech, and others do not.

Holmes concurred with this opinion, but this, in my view, is a change of mind for Holmes. That is fine; thinking people do that alot. The exact interpretation and application of the Constitution is something you kind of figure out a bit at a time.

The thing is that someone had suggested that we go back to using the Schenck ruling as the standard for interpreting the 1st amendment. I don't think that would be a good idea.

PG said...

Firing him from a job, ironically, might well get you hit with a lawsuit for violating his freedom of speech.

Only if he is a government employee. The First Amendment protects you from the government, not the private sector (unless you are in a contract that says you cannot be fired for your speech, in which case the lawsuit is based on contract, not the First Amendment).

Joe The Math Guy said...

Hi PG. I certainly see that that is the way it SHOULD be...the 1st amendment protects you from the government, but if a private individual does not like what you say, she can withdraw support from you. Fire you, or whatever. But I have the vague impression that this is sometimes not always followed in practice; I don't know of any examples.

Freewheel said...

"I don't think that would be a good idea."

Joe, I concur.

Whenever officials want to censor or limit speech, they quote Holmes: "The first amend. is not absolute" and/or "You can't shout fire in a crowded theater." It's sad, because Holmes' subsequent dissents are lost, and they contain some great quotes, too ("all of life is a great experiment" and allowing ideas to compete in a "marketplace of ideas."

The fact is, you can should fire in a crowded theater. And you should - if you think it's on fire. Unfortunately, truth isn't always measured so easily as whether or not there's a fire. For example, is a gov't policy right or wrong? If you believe the gov't is wrong, then absolutely, you should shout fire.

PG said...

People are at liberty to say that they think a government policy is wrong. They just can't break the law. For example, you can say that the government should allow people to make jokes about terrorism while waiting in line at airport security; you just can't make jokes about terrorism while in line at airport security without suffering consequences.

Civil disobedience without a willingness to spend a night in Birmingham jail isn't particularly admirable.

ogre said...

PG wrote [thanks CC, for pointing to this still being live... I seem to have missed keeping a finger on its pulse...] Civil disobedience without a willingness to spend a night in Birmingham jail isn't particularly admirable.

Yeah, only not strong enough. Actual civil disobedience means that you undertake the illegal act that violates your sense of morality with not merely an intention, but a devotion, to only violating that law and not other laws which are acceptable--and with a willingness and intention of accepting the full legal consequences of conviction.

One is not merely willing to spend a night in jail or face a fine (though that may be all that comes of it). One is actively making of oneself a sabot to hurl into the machinery of injustice.

Where some law and order fanatic may posture and puff up about making an example of someone, that's precisely what someone undertaking civil disobedience is doing--making an example of oneself. In doing so, one seeks to remain as much in the right legally as one can, and completely in the right ethically... thereby seeking to make the other participants in the farce (judge, jury, witnesses... media, readers and viewers...) gag on the "logical" and "legal" results and refuse to enforce the law, or to tolerate its enforcement.

This is the essence of satyagraha, truth-force. which is why CC and I agreed elsewhere that cheesy acts of protest that don't put one's body and liberty on the line don't deserve to be described as "civil disobedience" any more than a tricyle should be called a Formula 500 race car.


Joe-t-m-g, I hear you... but I'm a history guy, and I'm all too aware of the tangible downside of that laudable purity of vision -- that only a threat to a named (or individually identifiable) person is a threat. Far, far too many victims of lynchings, pogroms and the like weren't targets by that definition.

The point being that when a murder is intended, the law expresses that as "intent to commit severe bodily harm" (if there's some wiggle room about the intention) or "intent to kill." Yet there's no need to have acted. How is it any less reprehensible or societally unacceptable to intend to go kill anyone who fits a generic definition than it is to target someone specific?

That seems patently absurd.

If the behavior is clearly criminal, then the fact that I have a specific target in mind, or am happy to pick a random target who fits the bill should not matter. Both are grossly anti-social and disruptive and thereby fit the bill of legitimate state action to a "t," even for the wild-eyed, radically libertarians among us.

So how is it any different when making threats? Or when using inflammatory speech?

The world's "full" of nuts. Yup. We all know that people are out there who aren't stable--and we know that the wrong comment or act to the wrong person might get a bizarre and even dangerous response (hello... road rage!). I'm willing to let a court--a jury--decide that a statement was really innocuous, and that no reasonable person would ever have imagined that such an action was actually imagined or desired. But I think that as a means of encouraging a reasonably safe society and getting people to act responsibly with their mouths--as well as with their physical stuff--holding them accountable for saying provocative things is reasonable.

It's at least as reasonable as the laws about "attractive nuisances." If my having a fenced-off, gated, locked pool is a temptation to the foolish to come and injure or kill themselves that I am to be held responsible for... then the unrestrained, anti-social, hateful speech of someone that can lead to the very same results (serious injury or death) ought to be held as accountable.

PG said...

Speech by itself cannot kill anyone, and unless directed at a specific person cannot be accurately described as a threat to an individual. Certainly those who participate in lynchings and pogroms ought to be punished to the fullest extent of the law (which I believe should include additional penalties for crimes motivated by legally-disapproved biases), but someone who merely rails against black men or rich Jews has not threatened any particular black man or rich Jew.

Or as I once wrote in exasperation after a particularly lame remark by Justice Scalia in oral arguments: "I daresay," cuts in Scalia, "if you were a black man you'd rather see a man with a rifle on your lawn than a man with a burning cross." How do you know, white boy? I'm no black man, but I'll take the cross over the rifle.

ogre said...

pg, threats against a community or group are as real as those against an individual. Particularly if the person threatening doesn't care if specific people are harmed.

How that's not "accurately" a threat I can't fathom, having made my living through competency with the language....