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>The reasons are complex and difficult to articulate, though what I had to say ... on Reddit ... about limitations on speech some six years ago seems strongly a

>The reasons are complex and difficult to articulate, though what I had to say ... on Reddit ... about limitations on speech some six years ago seems strongly appropriate I don't think basing your argument on Schneck does it any good. It doesn't seem to be considered good decision nowadays. That case would fall well within First Amendment protections by standards established in later cases.

dredmorbius 5y ago
But I didn't base my argument on Schenck. What I did was to take the metaphor of a dissenting opinion [Note: majority opinion, see comments below, my error] and then invert it (which would make any precedent invalid regardless) for the purpose of posing a question: what can we ask about the nature of harm caused by denying a threat, most especially when there is a self-serving interest in doing so? Schenck was a bad ruling, it's been overturned, and Holmes's argument appeared in a dissent. [Update: Nope, majority, see reply below.] It's memorable language (which is why it is invoked all the time, usually in a mistaken or misleading way). But it has never been guiding language. It's still a useful notion: one of considering private right to speech vs. the court's interest in public harm. Holmes's hypothetical was in falsely claiming a threat where none existed. That occurs occasionally, but is actually somewhat less an issue than denying a threat. The second is a behaviour we've seen again and again and again, mostly in a private-enterprise, "free market", private-property (and profit) context, where by downplaying some harm, profits or business can be transacted for a longer time with a larger market (or frauds perpetrated). This is what Naomi Oreskes and Erik Conway document repeatedly in Merchants of Doubt. The benefit in Covid disinformation may be harder to pin down, though there are several pretty plausible cons that might be played, including poltical power, sale of hoax or ineffective cures (as has been suggested regarding Florida's governor and a key political funder), and general huckstering and grift.
- garaetjjte 5y ago
  >Schenck was a bad ruling, it's been overturned, and Holmes's argument appeared in a dissent. I'm not sure I follow. Holmes authored opinions for unanimous decisions for upholding convictions of peaceful criticism of draft in Schenck, Debs and Frohwerk. https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ https://www.popehat.com/2012/09/19/three-generations-of-a-ha...
  - dredmorbius 5y ago
    You're right, my error. I've updated my comment to note that, though I've left my error standing. I was thinking of the subsequent Abrams case (only a few months later in 1919) where Holmes departed from the Majority. That disagreement became the Great Dissent (and recent-ish book of the same title). If I can somewhat cover for myself: Holmes in Schenck, and yes, writing for the majority, offered the "fire in a crowded theatre" hypothetical as not deserving protection. Again: partiall overturned later in Brandenburg (1969). My point remains that I'm not actually using Holme's hypo but one derived from it, and again, with a direct-gain motive added to that.

dredmorbius 5y ago

But I didn't base my argument on Schenck. What I did was to take the metaphor of a dissenting opinion [Note: majority opinion, see comments below, my error] and then invert it (which would make any precedent invalid regardless) for the purpose of posing a question: what can we ask about the nature of harm caused by denying a threat, most especially when there is a self-serving interest in doing so? Schenck was a bad ruling, it's been overturned, and Holmes's argument appeared in a dissent. [Update: Nope, majority, see reply below.] It's memorable language (which is why it is invoked all the time, usually in a mistaken or misleading way). But it has never been guiding language. It's still a useful notion: one of considering private right to speech vs. the court's interest in public harm. Holmes's hypothetical was in falsely claiming a threat where none existed. That occurs occasionally, but is actually somewhat less an issue than denying a threat. The second is a behaviour we've seen again and again and again, mostly in a private-enterprise, "free market", private-property (and profit) context, where by downplaying some harm, profits or business can be transacted for a longer time with a larger market (or frauds perpetrated). This is what Naomi Oreskes and Erik Conway document repeatedly in Merchants of Doubt. The benefit in Covid disinformation may be harder to pin down, though there are several pretty plausible cons that might be played, including poltical power, sale of hoax or ineffective cures (as has been suggested regarding Florida's governor and a key political funder), and general huckstering and grift.

garaetjjte 5y ago
>Schenck was a bad ruling, it's been overturned, and Holmes's argument appeared in a dissent. I'm not sure I follow. Holmes authored opinions for unanimous decisions for upholding convictions of peaceful criticism of draft in Schenck, Debs and Frohwerk. https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ https://www.popehat.com/2012/09/19/three-generations-of-a-ha...
- dredmorbius 5y ago
  You're right, my error. I've updated my comment to note that, though I've left my error standing. I was thinking of the subsequent Abrams case (only a few months later in 1919) where Holmes departed from the Majority. That disagreement became the Great Dissent (and recent-ish book of the same title). If I can somewhat cover for myself: Holmes in Schenck, and yes, writing for the majority, offered the "fire in a crowded theatre" hypothetical as not deserving protection. Again: partiall overturned later in Brandenburg (1969). My point remains that I'm not actually using Holme's hypo but one derived from it, and again, with a direct-gain motive added to that.