Lil devils x said:
Once again, if you believe current law is insufficient to end right-wing violence in this country, there's only one way to go from here. And indeed, considering the current state of anti-terrorism law and that we already
vastly exceed the enumerated boundaries of the Constitution in this regard, anything but advocacy for a roll-back is advocacy for civil liberties and rights violations.
Now, that said, since you deemed fit to bring up the fighting words and clear and present danger doctrines in the context of my dire warnings, shall we discuss it since apparently points I made three pages ago were not clear or vociferous enough?
The clear and present danger standard was first crafted in Schenck, a case wherein pamphleteering in protest of American involvement in WWI and the draft was ruled unprotected speech. Schenck being the origin of Holmes' infamous "shouting fire in a crowded theater" quip. That case was joined by Debs v. US, wherein Eugene V. Debs was arrested and convicted of espionage for...protesting American involvement in WWI and the draft.
The end goal being to persecute, oppress, and imprison critics and dissidents of the US government, most notably socialists and unionists, which would continue straight through to the second Red Scare (see Whitney and Yates). Something Holmes himself would realize in time for him to reverse his earlier position, in Abrams, but alas the precedent was already set and Abrams ignored.
Of course, I'd be remiss in failing to mention the earlier bad tendency standard, established in Patterson v. Colorado when a newspaper printed accusations Colorado state judges illegally overturned election results as a result of bribery. Once again, a weak standard of speech protection was employed to suppress criticism of the government.
The fighting words doctrine was first crafted in Chaplinsky, a case wherein a Jehovah's Witness was speaking publicly in criticism of organized religion and arrested for disturbing the peace. The disturbance? men who had gathered in response to Chaplinsky's speech were
physically assaulting him, and not arrested. Chaplinsky, unhappy about this, cussed out the cop.
The doctrine was cut from whole cloth to justify the arrest of a member of a religious minority, when members of a
majority religion assaulted
him for speaking peacefully and publicly in criticism of the
majority religion. Sit down and think about that before advocating the standard.
The doctrine would be weakened (for good fucking reason) in Street v. New York (one of the flag burning cases) where it was ruled offensiveness could not elevate speech to the status of fighting words. In Cohen, it was weakened further when it was ruled speech not containing personal epithets could not be construed as fighting words. Texas v. Johnson was the second to last nail in the coffin, when it ruled "fighting words" were only direct, personal insults and/or direct invitations to physical violence. The doctrine became effectively defunct in RAV v. St. Paul when it was ruled viewpoint- and content-discriminatory laws forbidding inflammatory speech (even symbolic) run afoul of the 14th Amendment.
The law of the land is currently the imminent lawless action standard of Brandenburg, which has withstood the test of war protest, political affiliation, and symbolic speech. The issue you have to overcome, is the century-long history and jurisprudence of lax speech protection being exploited by the government for the
exact end you claim to oppose: persecution of people on the basis of political and religious affiliation, and suppressing criticism of the government. If "you" give government the power to regulate speech on the basis of content and viewpoint, "you" do not get to decide what speech is curtailed; the
state does, and the state will act in
its interests (or rather, the interests of those in power).
Not to put too fine a point on it, but let's assume the US had hate speech laws. Whose speech, under the Trump administration, do you believe would be defined as hateful?
