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> 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

by 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.
  - omgwtfbyobbq 6y ago
    The New York Times vs Sullivan precedent does, in terms of defamation. That may not apply in other situations, specifically in federal crimes. The Constitution may not differentiate between individuals and other entities, but the courts have differentiated between them. They may not in this case, but I wouldn't assume they would either. They also differentiate based on other facts, which may differentiate any future cases. We definitely have freedom of the press, as it relates to defamation, and parody, but the precedent established in those cases may not apply to a case involving criminal acts.
    - bhupy 6y ago
      > The Constitution may not differentiate between individuals and other entities, but the courts have differentiated between them. When? To my knowledge, there are no major landmark decisions which hold that an association of individuals may be treated differently from individuals; especially as it relates to the First Amendment. We even have a precedent in Citizens United v FEC which reinforces the consistency between individuals and organizations under First Amendment jurisprudence. > We definitely have freedom of the press, as it relates to defamation, and parody, but the precedent established in those cases may not apply to a case involving criminal acts. The established cases also include criminal acts, as was the case when the Ku Klux Klan advocated for (criminal) violence. The courts have held that even advocating for illegal acts at some time in the future is protected (Hess).
      - omgwtfbyobbq 6y ago
        There's nothing I know of that applies to the First Amendment, but there are many examples where individuals and organizations, or even organizations in different levels of government, are held to different standards under the law. The standards for HOAs versus local government is a good example. Some states require that HOAs enforce code equally, but will permit local government to enforce it unequally because local government has relatively limited resources. The court may consider a media corporation to be identical to an individual in terms of First Amendment cases, but I wouldn't be certain about that. The established cases do include criminal acts, but those were challenged based on the unconstitutionality of state law, and were in different crcumstances. If DT were charged with inciting a riot by the District of Columbia, then Hess is great precedent, but I don't think it would be great in a government case against a media corporation. The government likely wouldn't bring criminal charges against a specific individual either, which changes things. If they seek monetary damages and an injunction, or even just an injunction, the precedent used in Hess may not apply.
NoodleIncident 6y ago
> "nothing more than the advocacy of illegal action at some indefinite future time" So for this case, since there was a definite future time, it would indeed be imminent?

by bhupy 6y ago

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.
- omgwtfbyobbq 6y ago
  The New York Times vs Sullivan precedent does, in terms of defamation. That may not apply in other situations, specifically in federal crimes. The Constitution may not differentiate between individuals and other entities, but the courts have differentiated between them. They may not in this case, but I wouldn't assume they would either. They also differentiate based on other facts, which may differentiate any future cases. We definitely have freedom of the press, as it relates to defamation, and parody, but the precedent established in those cases may not apply to a case involving criminal acts.
  - bhupy 6y ago
    > The Constitution may not differentiate between individuals and other entities, but the courts have differentiated between them. When? To my knowledge, there are no major landmark decisions which hold that an association of individuals may be treated differently from individuals; especially as it relates to the First Amendment. We even have a precedent in Citizens United v FEC which reinforces the consistency between individuals and organizations under First Amendment jurisprudence. > We definitely have freedom of the press, as it relates to defamation, and parody, but the precedent established in those cases may not apply to a case involving criminal acts. The established cases also include criminal acts, as was the case when the Ku Klux Klan advocated for (criminal) violence. The courts have held that even advocating for illegal acts at some time in the future is protected (Hess).
    - omgwtfbyobbq 6y ago
      There's nothing I know of that applies to the First Amendment, but there are many examples where individuals and organizations, or even organizations in different levels of government, are held to different standards under the law. The standards for HOAs versus local government is a good example. Some states require that HOAs enforce code equally, but will permit local government to enforce it unequally because local government has relatively limited resources. The court may consider a media corporation to be identical to an individual in terms of First Amendment cases, but I wouldn't be certain about that. The established cases do include criminal acts, but those were challenged based on the unconstitutionality of state law, and were in different crcumstances. If DT were charged with inciting a riot by the District of Columbia, then Hess is great precedent, but I don't think it would be great in a government case against a media corporation. The government likely wouldn't bring criminal charges against a specific individual either, which changes things. If they seek monetary damages and an injunction, or even just an injunction, the precedent used in Hess may not apply.

NoodleIncident 6y ago

> "nothing more than the advocacy of illegal action at some indefinite future time" So for this case, since there was a definite future time, it would indeed be imminent?