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.
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.
(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."