[TigersEye]

You are quoting outdated overturned law.

To: pillut48

Terminello v. Chicago:

"The [public disturbance] ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand"

This justice apparently forgets that the "shout 'fire' in a crowded theater" statement (a misquote of Holmes by Breyer of course) was made in Schenck v. United States, which has since been overturned as too restrictive on freedom of speech. BTW, "falsely shouting fire in a theater" (the actual quote) was not the point of the case, but a comment by Holmes as an example of what he considered non-protected speech under a standard of "clear and present danger." That is no longer the standard. The current test is "imminent lawless action" and it has three prongs: intent, imminence and likelihood. From Brandenburg v. Ohio:

...the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Even if you could say that he lit a Quran in order to get these people violent, it still doesn't apply. He has to be advocating the violence. As Learned Hand stated in the related case of Masses Publishing Co. v. Patten:

[If] one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation

The preacher is ABSOLUTELY PROTECTED under the 1st Amendment even if his burning gets the Muslims' panties in a bunch and they start rioting. It's sad that a Supreme Court justice would even think this way.

43 posted on Tuesday, September 14, 2010 2:19:20 PM by antiRepublicrat

[antiRepublicrat]

Terminello v. Chicago:

"The [public disturbance] ordinance as construed by the trial court seriously invaded this province. It permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand"

This justice apparently forgets that the "shout 'fire' in a crowded theater" statement (a misquote of Holmes by Breyer of course) was made in Schenck v. United States, which has since been overturned as too restrictive on freedom of speech. BTW, "falsely shouting fire in a theater" (the actual quote) was not the point of the case, but a comment by Holmes as an example of what he considered non-protected speech under a standard of "clear and present danger." That is no longer the standard. The current test is "imminent lawless action" and it has three prongs: intent, imminence and likelihood. From Brandenburg v. Ohio:

...the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Even if you could say that he lit a Quran in order to get these people violent, it still doesn't apply. He has to be advocating the violence. As Learned Hand stated in the related case of Masses Publishing Co. v. Patten:

[If] one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation

The preacher is ABSOLUTELY PROTECTED under the 1st Amendment even if his burning gets the Muslims' panties in a bunch and they start rioting. It's sad that a Supreme Court justice would even think this way.

[OneWingedShark]

You are quoting outdated overturned law.

Ah, but there's the problem you are saying that it's an overturned law, but it never was a law: it was a ruling -- to say otherwise is to allow the courts to [illegitimately] destroy and/or edit laws... Roe v. Wade is a good example, in it they created a "right to privacy"* which in turn invalidated the States's restrictions on it. This is further illustrated by Affordable Care Act where the court went in and 'rewrote' the law "making" it constitutional.

* Funny thing about this right to privacy is it doesn't protect from, say, the TSA or warentless wiretap.