Posted on 05/18/2022 4:52:46 AM PDT by Kaslin
When politicians echo Justice Oliver Wendell Holmes' famous observation about "shouting 'fire' in a crowded theater," it typically means they are trying to justify unconstitutional speech restrictions. So it was with New York Gov. Kathy Hochul's comments after the racist mass shooting that killed 10 people at a Buffalo grocery store on Saturday.
Hochul was responding to questions from "Meet the Press" host Chuck Todd, who during Sunday's show condemned "a permissive culture on the internet" that allows "right-wing extremism" and "white supremacy" to run rampant. Given the role that such views played in Saturday's horrifying attack, Todd asked Hochul, shouldn't "internet companies" be "held responsible for the easy spread of this propaganda"?
Todd noted with dismay that critics of that proposition tend to cite "freedom of speech or things like this." Hochul shared his impatience with such objections.
"I'll protect the First Amendment any day of the week," the governor said. "But you don't protect hate speech. You don't protect incendiary speech. You're not allowed to scream 'fire' in a crowded theater. There are limitations on speech."
Hochul is right that the Supreme Court has recognized exceptions to the freedom of speech guaranteed by the First Amendment. She is wrong in thinking that "hate speech" is one of them.
As First Amendment scholar David Hudson notes, that provision "makes no general exception for offensive, repugnant, or hateful expression." To the contrary, the Supreme Court repeatedly has held that bigoted and outrageously inflammatory speech, including the sort that influenced the Buffalo shooter, is constitutionally protected
Hochul, who has a law degree, should know that. But her allusion to the analogy that Holmes drew in the 1919 case Schenck v. United States tells you how little regard she actually has for the freedoms she claims she is prepared to defend "any day of the week."
In that decision, the Court unanimously upheld the Espionage Act convictions of two Socialist Party leaders, Charles Schenck and Elizabeth Baer, who had sent recently drafted soldiers "printed circulars" arguing that conscription violated the 13th Amendment's ban on involuntary servitude. While that argument might be tolerable in ordinary times, the Court said, it posed "a clear and present danger" during World War I and therefore was properly treated as a crime.
"The character of every act depends upon the circumstances in which it is done," Holmes wrote. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
A week later, in two more unanimous opinions by Holmes, the Court applied the same logic to uphold the Espionage Act convictions of Socialist presidential candidate Eugene Debs and newspaper publisher Jacob Frohwerk. As the Court saw it, the First Amendment did not protect a speech urging resistance to the draft or articles criticizing U.S. involvement in World War I.
Within six years, however, the Court began to retreat from the "clear and present danger" test. The current standard for punishing allegedly crime-promoting speech, laid out in the 1969 case Brandenburg v. Ohio, asks whether it is both intended to incite "imminent lawless action" and "likely" to do so.
Under that test, it is clear that promoting racist and antisemitic ideas such as "replacement theory," which posits that Jews are conspiring to make whites a minority in the United States, is constitutionally protected. Yet Hochul seems to prefer the repudiated jurisprudence that allowed the government to imprison Schenk, Baer, Debs and Frohwerk.
Hochul's invocation of Holmes' analogy makes it clear that she is not just talking about voluntary moderation by social media companies. "I want to silence those voices now," she said at a Buffalo church on Sunday.
If "the social media platforms that allow this hatred to ferment" fail to suppress it, Hochul said, "I will use every bit of the power I have as your governor to protect you." Fortunately, Hochul does not have as much power as she thinks.
Good lord, she’s deranged. If you hold internet companies accountable for this madness, then all forms of mass media will need to be held accountable, including newspapers, magazines, and TV. The SCOTUS has already deemed the internet to be considered print and is protected by the 1st amendment.
Can you imagine Lester Holt or Dan Blather getting hauled into court over something the broadcasted?
Acutally Justice Holmes, that's a private property issue.
If I own a theater, maybe I do NOT want to restrict speech...I've been to theaters where the audience is rowdy and yells at the screen. I've been to concerts where more problematic things than "Fire" have been shouted.
In the free market, people who don't like unrestricted speech/yelling fire will go to the Karen Theatre where you speech is restricted and you aren't allowed to bring your firearm etc.
Over time and equilibrium is established, and the govt stays out of it.
What a long, strange trip it's been, that 53 years after Woodstock that it's the conservatives that are championing free speech and "questioning authority" and the liberals want to shred the Constitution.
In fact, you will find that they are some of the biggest promoters of it. They just get to define what is and isn't because . . . well, just because they are so much smarter than the rest of us. If you don't believe it, just ask them.
Freedom of speech means nothing unless you have the freedom to offend.
” New York’s Governor Wants to ‘Silence’ Constitutionally Protected Speech’
Democrats Want to ‘Silence’ Constitutionally Protected Speech
There, fixed it
Side note: I’m pretty sure that the white supremacist groups out there are NOT right-wing. They are just another socialist group wanting to grab power. (unless you consider “right-wing” to mean the nationalist side of socialism)
Hochul deserves to lose, she’s as bad as Whitmer and Cuomo.
Liberals: We need to restrict free speech because our government schools are far too busy teaching CRT, sexual identity and inclusiveness that they can’t teach history, philosophy and debate. Even though teaching that history, philosophy and debate would help inoculate students against being hoodwinked or manipulated by failed “unacceptable” ideas, we demand the right to spend precious education time exposing students to brown indigenous queers with gender fluidity to ensure dysfunctional groups no longer feel marginalized. Given our high purpose, it is totally unacceptable that anyone else is permitted to manipulate our vulnerable, ignorant kids. These “others” must be silenced.
Is NYS using taxpayer dollars to buy off victims’ families with millions in hush money...?
Inquiring minds want to know.
You CAN yell ‘fire’, if there IS a fire.
And yes, there is a fire.
BUT-—YOU ALL ARE ALLOWED TO CLAIM Geo Floyd didn’t die from Fetanyl.
She reminds me of Jane Hudson.
Now I know Whatever happened to Baby Jane.
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