6 ms·

> To me, it could also be the modern day version of yelling "Fire!" in a crowded theater, and I think it hinges on how people reacted to the misinformation. Th

by bhupy 6y ago

> To me, it could also be the modern day version of yelling "Fire!" in a crowded theater, and I think it hinges on how people reacted to the misinformation. That legal argument has been overturned precisely because it has no real limiting principle: https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ https://www.theatlantic.com/national/archive/2012/11/its-tim...

omgwtfbyobbq 6y ago
While it's not the best, people are familiar with it. The replacement is certainly more accurate. In this case, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action?
- rayiner 6y ago
  "Incitement" and "imminent lawless action" are extremely narrow compared to what people are talking about here: https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio Even openly advocating violence is protected by the first amendment under the Supreme Court's Brandenburg decision.
  - omgwtfbyobbq 6y ago
    They are narrowly interpreted as it relates to individuals, but I'm not sure that same interpretation would be applied to media outlets. In terms of liability, as a property owner I have a much lower standards for care, custody, and control of an empty piece of property I have with a no trespassing sign than a corporation has for a sports stadium they run. I'm not certain that the standards for free speech by an individual in a single instance would be the same as the standards for a large media corporation across multiple instances. How narrowly the court interprets "incitement" and "imminent lawless action" may be a function of the entity making them. An individual who is making political speech could say something that is considered protected, while a large corporation saying the same thing repeatedly, in a different context, may not be protected in the same way.
    - rayiner 6y ago
      While the Supreme Court has not specifically ruled on incitement in the context of media outlets, it's clear from cases like New York Times v. Sullivan and Hustler Magazine v. Falwell that the Supreme Court is extremely protective of speech by media outlets.
      - omgwtfbyobbq 6y ago
        They are, in civil cases involving defamation and parody. I don't think a case involving any of the media outlets who are spreading misinformation about the election that could be related to federal crimes would be based on either of those.
- bhupy 6y ago
  > In this case, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action? We have several Supreme Court decisions that can help answer this question. First of all, misinformation was established to be protected speech in NYTimes vs Sullivan, where the SCOTUS unanimously found that the New York Times was within its rights to publish an advertisement containing factual inaccuracies[1]. Brandenburg v Ohio (also unanimous[2]) explicitly established the "imminent lawless action" test as overriding the "clear and present danger" test; which was further reinforced by Hess v Indiana in which the court found that Hess's words were protected by the First Amendment because his speech amounted to "nothing more than the advocacy of illegal action at some indefinite future time"; i.e. failing the "imminence" portion of the "imminent lawless action" test [3]. > While it's not the best, people are familiar with it. The replacement is certainly more accurate. The entire point is that what people are familiar with is incorrect and should no longer be considered a valid argument. In fact, the irony of this logic is that one could argue that advocating for limiting speech by falsely citing an overturned precedent as currently relevant is itself misinformation that can be legally regulated even under the First Amendment; we would both agree that that is nonsense. [1] https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan [2] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio [3] https://en.wikipedia.org/wiki/Hess_v._Indiana https://en.wikipedia.org/wiki/Hess_v._Indiana
  - omgwtfbyobbq 6y ago
    We do, for individuals, in specific situations. Like I stated in my comment above, I'm not certain those would apply in this case.
    - bhupy 6y ago
      The New York Times vs Sullivan precedent pretty specifically addressed that issue: organizations (like the NYT) are protected by the First Amendment. Also, just taking a step back, the Constitution makes no mention of a difference between individuals and groups. If you and I were to group together to advocate for something, our rights to advocate for that thing don't magically disappear. In fact, by this logic, we don't actually have a free press, because journalistic outlets aren't individuals, they are organizations that the Constitution doesn't protect.

by bhupy 6y ago

omgwtfbyobbq 6y ago

While it's not the best, people are familiar with it. The replacement is certainly more accurate. In this case, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action?

rayiner 6y ago
"Incitement" and "imminent lawless action" are extremely narrow compared to what people are talking about here: https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio Even openly advocating violence is protected by the first amendment under the Supreme Court's Brandenburg decision.
- omgwtfbyobbq 6y ago
  They are narrowly interpreted as it relates to individuals, but I'm not sure that same interpretation would be applied to media outlets. In terms of liability, as a property owner I have a much lower standards for care, custody, and control of an empty piece of property I have with a no trespassing sign than a corporation has for a sports stadium they run. I'm not certain that the standards for free speech by an individual in a single instance would be the same as the standards for a large media corporation across multiple instances. How narrowly the court interprets "incitement" and "imminent lawless action" may be a function of the entity making them. An individual who is making political speech could say something that is considered protected, while a large corporation saying the same thing repeatedly, in a different context, may not be protected in the same way.
  - rayiner 6y ago
    While the Supreme Court has not specifically ruled on incitement in the context of media outlets, it's clear from cases like New York Times v. Sullivan and Hustler Magazine v. Falwell that the Supreme Court is extremely protective of speech by media outlets.
    - omgwtfbyobbq 6y ago
      They are, in civil cases involving defamation and parody. I don't think a case involving any of the media outlets who are spreading misinformation about the election that could be related to federal crimes would be based on either of those.
bhupy 6y ago
> In this case, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action? We have several Supreme Court decisions that can help answer this question. First of all, misinformation was established to be protected speech in NYTimes vs Sullivan, where the SCOTUS unanimously found that the New York Times was within its rights to publish an advertisement containing factual inaccuracies[1]. Brandenburg v Ohio (also unanimous[2]) explicitly established the "imminent lawless action" test as overriding the "clear and present danger" test; which was further reinforced by Hess v Indiana in which the court found that Hess's words were protected by the First Amendment because his speech amounted to "nothing more than the advocacy of illegal action at some indefinite future time"; i.e. failing the "imminence" portion of the "imminent lawless action" test [3]. > While it's not the best, people are familiar with it. The replacement is certainly more accurate. The entire point is that what people are familiar with is incorrect and should no longer be considered a valid argument. In fact, the irony of this logic is that one could argue that advocating for limiting speech by falsely citing an overturned precedent as currently relevant is itself misinformation that can be legally regulated even under the First Amendment; we would both agree that that is nonsense. [1] https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan [2] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio https://en.wikipedia.org/wiki/Brandenburg_v._Ohio [3] https://en.wikipedia.org/wiki/Hess_v._Indiana https://en.wikipedia.org/wiki/Hess_v._Indiana
- omgwtfbyobbq 6y ago
  We do, for individuals, in specific situations. Like I stated in my comment above, I'm not certain those would apply in this case.
  - bhupy 6y ago
    The New York Times vs Sullivan precedent pretty specifically addressed that issue: organizations (like the NYT) are protected by the First Amendment. Also, just taking a step back, the Constitution makes no mention of a difference between individuals and groups. If you and I were to group together to advocate for something, our rights to advocate for that thing don't magically disappear. In fact, by this logic, we don't actually have a free press, because journalistic outlets aren't individuals, they are organizations that the Constitution doesn't protect.