3 ms·

It's so far been in the hands of the courts, and like you said, they don't determine what's free speech based on whether something makes us feel bad. Per bhupy

It's so far been in the hands of the courts, and like you said, they don't determine what's free speech based on whether something makes us feel bad. Per bhupy, their specific criteria is whether the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action". If the misinformation on certain media outlets is considered by the courts to have incited the insurrection , then it may not be considered free speech.

rayiner 6y ago
> If the misinformation on certain media outlets is considered by the courts to have incited the insurrection , then it may not be considered free speech. The legal standard for "inciting or producing imminent lawless action" is given by Brandenburg v. Ohio. In that case, which upheld speech openly advocating for violence against specific groups to be protected speech. It overturned an Ohio law that had been directed against communists who "advocated the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." Brandenburg was a 9-0 Warren court decision. Courts will not uphold anything that has been said about the election as outside the boundaries of free speech, under Brandenburg.
- omgwtfbyobbq 6y ago
  It is, but I'm not certain the courts will interpret it the same way when applied to a large media corporation making many statements over a long period of time. Like rayiner said, the courts have been protective of media corporation's free speech, but those were cases involving defamation or intentional infliction of emotional distress, not an insurrection with the intent to detain and possibly murder elected officials. https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
  - tiahura 6y ago
    Both of those cases were unanimous decisions upholding free speech. Moreover, they were civil, not criminal cases.
    - omgwtfbyobbq 6y ago
      They were, and they addressed parody and defamation, which I'm guessing wouldn't apply to a case, civil or criminal, about whether media corporations incited an insurrection.
- AnthonyMouse 6y ago
  Related: https://greenwald.substack.com/p/congress-escalates-pressure-on-tech https://greenwald.substack.com/p/congress-escalates-pressure...
jcranmer 6y ago
> If the misinformation on certain media outlets is considered by the courts to have incited the insurrection The courts will not consider it to be incitement. If you think the courts even might, you are woefully deficient in your understanding of case law. A key word in the Brandenburg standard is "imminent", and that makes the Brandenburg bar very high. Taking a crowd of antisemites to a Jewish neighborhood and telling them antisemitic creeds and how all Jews need to die doesn't meet that bar--but pointing to a Jew and saying "there's a Jew, get him" does. Thinking SCOTUS might take a narrower view of free speech than its established precedent holds is not a winning bet. I'm not aware of a single case in my lifetime where SCOTUS ruled for more government restriction of speech rather than less, and this approach means taking a broader view of free speech than perhaps most people are willing to stomach (e.g., Citizens United).

rayiner 6y ago

> If the misinformation on certain media outlets is considered by the courts to have incited the insurrection , then it may not be considered free speech. The legal standard for "inciting or producing imminent lawless action" is given by Brandenburg v. Ohio. In that case, which upheld speech openly advocating for violence against specific groups to be protected speech. It overturned an Ohio law that had been directed against communists who "advocated the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." Brandenburg was a 9-0 Warren court decision. Courts will not uphold anything that has been said about the election as outside the boundaries of free speech, under Brandenburg.

omgwtfbyobbq 6y ago
It is, but I'm not certain the courts will interpret it the same way when applied to a large media corporation making many statements over a long period of time. Like rayiner said, the courts have been protective of media corporation's free speech, but those were cases involving defamation or intentional infliction of emotional distress, not an insurrection with the intent to detain and possibly murder elected officials. https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan
- tiahura 6y ago
  Both of those cases were unanimous decisions upholding free speech. Moreover, they were civil, not criminal cases.
  - omgwtfbyobbq 6y ago
    They were, and they addressed parody and defamation, which I'm guessing wouldn't apply to a case, civil or criminal, about whether media corporations incited an insurrection.
AnthonyMouse 6y ago
Related: https://greenwald.substack.com/p/congress-escalates-pressure-on-tech https://greenwald.substack.com/p/congress-escalates-pressure...

jcranmer 6y ago

> If the misinformation on certain media outlets is considered by the courts to have incited the insurrection The courts will not consider it to be incitement. If you think the courts even might, you are woefully deficient in your understanding of case law. A key word in the Brandenburg standard is "imminent", and that makes the Brandenburg bar very high. Taking a crowd of antisemites to a Jewish neighborhood and telling them antisemitic creeds and how all Jews need to die doesn't meet that bar--but pointing to a Jew and saying "there's a Jew, get him" does. Thinking SCOTUS might take a narrower view of free speech than its established precedent holds is not a winning bet. I'm not aware of a single case in my lifetime where SCOTUS ruled for more government restriction of speech rather than less, and this approach means taking a broader view of free speech than perhaps most people are willing to stomach (e.g., Citizens United).