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This is not the standard in the US (although it's an incredibly common misconception), which is defined by Brandenberg v. Ohio, and requires " "directed to inci
by the_watcher 7y ago
This is not the standard in the US (although it's an incredibly common misconception), which is defined by Brandenberg v. Ohio, and requires " "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[0] In other words, it must not only have a purpose of inciting _lawless_ (not dangerous) action, but likely to produce said action.
Additionally, while the case involves "fire in a crowded theater", it's in a substantially more narrow concurrence that holds that the speech would have to, additionally, _actually produce_ said action. Under existing the "fire in a crowded theater standard" suggested here, yelling "FIRE" in a packed theater, but everyone ignoring you would be protected.
[0] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
- henryfjordan 7y agoThanks for offering some clarification! For the sake of argument, the law in Samoa under the state of emergency is that you must vaccinate. Is the accused not attempting to incite lawless behavior by telling people to not vaccinate? If one person resists because they read his FB posts, that seems enough to me.
- the_watcher 7y agoAmerican law doesn't apply in Samoa (as opposed to American Samoa). But for the sake of argument, yes, it would satisfy part of one element ("directed to inciting or producing imminent lawless action"). However it wouldn't satisfy the imminence requirement. Further, it would not satisfy the other ("is likely to incite or produce such action"). It's fairly easy to see that this is the case just by looking at what Americans have actually said. A memorable example to me was Zach de la Rosa telling the crowd at Coachella 2007 that every President since Truman should be lined up and shot. That is absolutely inciting lawless action, but no one with any kind of understanding of US free speech law would suggest he could be prosecuted.
- henryfjordan 7y agoI guess we don't know exactly what was posted from the article, but I was imagining that it wasn't just "Vaccines are bad" but rather something more like "Don't open your door when the emergency vaccinators come around", which would be advocating for imminent action. I still think the only reason this wouldn't be illegal in the US is that the underlying law forcing vaccination would probably be unconstitutional, not that the First Amendment protects anti-vaxx speech indefinitely.
- the_watcher 7y agoThe US has applied imminent incredibly narrowly. "Don't open your door when the emergency vaccinators come around" would absolutely be protected speech in the US.
- henryfjordan 7y agoWell that surprises me. Thanks for explaining everything!