10 ms·

Free speech doesn't include yelling fire in a crowded theater, nor does it include making suggestions of physical violence against a judge. This entire argume

by Aqueous 11y ago

Free speech doesn't include yelling fire in a crowded theater, nor does it include making suggestions of physical violence against a judge. This entire argument seems to revolve around the author's subjective notion of a 'credible threat,' but describing a specific act of physical violence (putting a human through a wood-chipper) against a specific person who also happens to be a public official (a sitting U.S. judge) could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard. Edit: or cause other reasonable people to believe that the individual's life was in danger

nostromo 11y ago
> The subpoena also covered such obviously harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well." http://reason.com/blog/2015/06/19/government-stifles-speech http://reason.com/blog/2015/06/19/government-stifles-speech This was obviously an overreach.
- AndrewBissell 11y ago
  You've got to love how the most popular anti-free speech canard actually comes from a Supreme Court justice upholding a man's imprisonment for opposing a military draft.
jayess 11y ago
https://popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://popehat.com/2015/05/19/how-to-spot-and-critique-cens...
CWuestefeld 11y ago
Free speech doesn't include yelling fire in a crowded theater This is incorrect. This is a silly characterizations on the limits of free speech (of which some certainly do exist). Ken, the writer at Popehat, has written many times on this very topic. To address the most obvious problem with your statement, free speech DOES include yelling fire in a theater, unless that cry is false. Further, Ken has also written at great length about what constitutes a "true threat", and demonstrated why NONE of the comments falls into that definition. Moreover, you pick the most egregious of the statements. Saying that there should be "a special place in hell" for the judge can't possibly be interpreted in that manner. Anyone trying to do so is obviously acting in bad faith.
- deleted 11y ago
  [deleted]
- 13years 11y ago
  And in the case of it being false, the restriction isn't on the grounds of free speech, but is on the grounds of property rights of the theater in which your actions have done damage.
- Aqueous 11y ago
  I prefer to apply the principle of charity when replying to others' arguments. You chose the most uncharitable reading of my invocation of the 'silly' 'yelling fire' prohibition. Obviously I'm talking about the situation where it is false - and that is exactly my point. Not all lies or false statements are protected. There is such a thing as prohibited speech. Yelling 'fire' when there is no fire is an example of it. Furthermore the test is whether a reasonable person believes they could telegraph intent. The test is - if you, a reasonable person, could reasonably believe that this judge's safety is in question? I will grant that it seems like the standard is fairly subjective, and libertarians are predictably siding with the expansive free-speech side of this argument, choosing not to read intent into something that other reasonable people might read intent into. I tend to err on the side of personal safety given that I read these comments as probably not true threats but also not definitely false. For what it's worth, though, I believe the sentence issued by the judge in question against Ross Ulbricht was unjust and unduly harsh and probably qualifies as cruel and unusual. Still, I don't recommend making suggestions of violence against an individual online, whether joking or not, and I don't think this is as clear cut as many are making it out to be.
  - pessimizer 11y ago
    Even correctly quoted with "falsely", the 'crowded theater' example comes from a decision resulting from the successful prosecution of someone handing out fliers opposing the WWI draft.
  - CWuestefeld 11y ago
    Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and the simple quip just is not an accurate statement about how Free Speech works in America. From another Popehat post (Ken's really serious about this stuff, and goes to great lengths to explain it), talking about Holmes's evolved jurisprudence years after making the fire/theater statement. Quoting: Holmes' Repentance — Too Little, Too Late Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. ... Holmes, a regretful Dr. Frankenstein struggling against his creation [that is, the fire/theater comment], dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking ... The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard http://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ http://popehat.com/2012/09/19/three-generations-of-a-hackney...
tptacek 11y ago
No. Start here: http://popehat.com/2013/10/07/meant-to-be-threatening-or-reasonably-seen-as-threatening/ http://popehat.com/2013/10/07/meant-to-be-threatening-or-rea... The exception to free speech for threats is "true threats". To prosecute a "true threat", the state must establish one or both of: * The subjective test, of whether it was the speaker's intent to convince the object of the threat that they were in danger * The objective test, of whether a reasonable disinterested observer would conclude that the speaker's language telegraphed an intent to actually commit harm. Threatening to stuff a judge in a wood chipper on an Internet message board clears neither of these two hurdles. It's facially not a true threat. An attempt to investigate it as such is an abuse of prosecutorial power. Hence the uproar.
- rayiner 11y ago
  The internet is a weird place, to be sure, where the standards of what a reasonable person would take to be a true threat are ill defined. But the comments at issue here seem squarely in the vein of: "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." (the comment at issue in Watts v. United States, which held that political hyperbole is not a true threat).
- Aqueous 11y ago
  I can see how a reasonable, disinterested person might read these comments either way. Specifically, some of the comments that were supposedly 'obviously' not threatening have to be taken in the context of the entire conversation in which they were made, and clearly some of the comments here are referring to a specific act against a specific person. How do you determine whether these comments 'definitively' telegraph intent? What is the criteria for determining that they definitely don't telegraph intent? In the case of the "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." comment, you have to closely read the comment to determine that there is no actual intent here, because the entire statement is conditional on the 'If they ever make me carry a rifle..." portion of the sentence, which at the very least makes it not an immediate threat. In some of these comments, there is no such qualification, the presence of which would make it fairly obvious that in this case there is no credible threat. These comments are not nearly as clear cut or objective as people are making it out to be since you can't determine from the specific language people are using that this is definitely not an immediate threat. EDIT: A lot of people are modding me down without making a substantive counterargument. Using the text of the comments please highlight the portions that prove objectively that there is no threatening intention please.
hyperpape 11y ago
It's also worth noting that the "fire in a crowded theater" analogy comes from a terrible decision that was overturned: http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ http://www.theatlantic.com/national/archive/2012/11/its-time....
BurningFrog 11y ago
The main free speech issue here is the gag order.
mwfunk 11y ago
This is an extremely reasonable point to make, and AFAICT Aqueous wasn't arguing against anyone, just adding context to the discussion. I seriously don't understand why anyone on any side of this issue would downvote any of his comments in this thread. Looking at all sides of an issue is critical, even more so when it's a legal issue, even more so when you vehemently disagree with the legal system about it. No good ever comes from shutting down meaningful conversation about this stuff, all that happens is that people get louder, dumber, more polarized, and vastly less informed. I think most people here are frustrated at what appears to be an abuse of the legal system, and when you're on the outside looking in and wanting to change what you see, it's so freaking important to understand why things are the way they are. If you don't, then you're just setting yourself up to be trivially shouted down by the people on the inside because you don't understand the system, so how could you know how to fix it?
- hyperpape 11y ago
  So, he referenced an overturned supreme court case and stated what appears to be like...just his opinion, man. On the other side, a statement about the standards for threats given by a former federal prosecutor. So it sure looks like he's just bullshitting about the case. If somehow that's not true, Aqueous should work to improve on conveying that they actually have evidence for what they're saying. Hacker News is overrun with people making "reasonable sounding" points that are just factually wrong. And when they don't bother to offer a real argument for them, downvotes seem in order.
  - Aqueous 11y ago
    As long as we are making fallacious appeals to authority, we also have here an actual judge who fucking issued the gag order and who approved the subpoena whose justification is under dispute. We might as well look at the argument of these other actual, currently federal lawyers who agree with what I am saying. Everyone here seems so certain of themselves, it's hard to believe there's ever any debate in an actual court of law! We should just start trying cases in the court of Hacker News. Look, everyone here seems to agree that the 'reasonable person' standard is the standard, though I misstated it in the beginning. My point is simply that two reasonable, disinterested people can disagree about what constitutes a threat. This does not seem to be a belief that justifies personal attacks, but apparently it is. But I essentially just walked into a room full of knee-jerk libertarians and mumbled that maybe their blanket view of free speech perhaps deserves some scrutiny, especially when we are also discussing violence in a country with a long history of violence (i.e. people making good on threats). As a matter of fact we just had a case last week where an individual made a vague threat in private company, said company didn't make anything of it, and then he went and murdered 9 innocent people.
Lazare 11y ago
> Free speech doesn't include yelling fire in a crowded theater, That is false as a matter of well established US law. That was used as an evocative argument in a long ago debate about what US law should be, and that side lost. > nor does it include making suggestions of physical violence against a judge. That is also false as a matter of well established US law. > describing a specific act of physical violence [...] against a specific person who also happens to be a public official [...] could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard. That is not the standard. > Edit: or cause other reasonable people to believe that the individual's life was in danger That is also not the standard. This is not a matter of opinion, and this is not a grey area. That's not how the "reasonable person" test actually works, and that's not how the "true threats" exception to the first amendment is actually defined. I understand that it might seem reasonable to you that someone "could" fear for their life as a result of the comments, or even that any reasonable person could do so, or even that they would. You might even be right. But as a matter of law, that doesn't matter.
- Aqueous 11y ago
  Edit: or cause other reasonable people to believe that the individual's life was in danger Actually I believe the 'reasonable person' test is the standard, though I stated it imprecisely. I guess 'telegraphed the intent to actually commit harm,' is how I'd edit it if I still could as tptacek said.
mariodiana 11y ago
If you can't wish someone dead, this isn't a free country.

by Aqueous 11y ago

nostromo 11y ago

> The subpoena also covered such obviously harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well." http://reason.com/blog/2015/06/19/government-stifles-speech http://reason.com/blog/2015/06/19/government-stifles-speech This was obviously an overreach.

AndrewBissell 11y ago
You've got to love how the most popular anti-free speech canard actually comes from a Supreme Court justice upholding a man's imprisonment for opposing a military draft.

jayess 11y ago

https://popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://popehat.com/2015/05/19/how-to-spot-and-critique-cens...

CWuestefeld 11y ago

Free speech doesn't include yelling fire in a crowded theater This is incorrect. This is a silly characterizations on the limits of free speech (of which some certainly do exist). Ken, the writer at Popehat, has written many times on this very topic. To address the most obvious problem with your statement, free speech DOES include yelling fire in a theater, unless that cry is false. Further, Ken has also written at great length about what constitutes a "true threat", and demonstrated why NONE of the comments falls into that definition. Moreover, you pick the most egregious of the statements. Saying that there should be "a special place in hell" for the judge can't possibly be interpreted in that manner. Anyone trying to do so is obviously acting in bad faith.

deleted 11y ago
[deleted]
13years 11y ago
And in the case of it being false, the restriction isn't on the grounds of free speech, but is on the grounds of property rights of the theater in which your actions have done damage.
Aqueous 11y ago
I prefer to apply the principle of charity when replying to others' arguments. You chose the most uncharitable reading of my invocation of the 'silly' 'yelling fire' prohibition. Obviously I'm talking about the situation where it is false - and that is exactly my point. Not all lies or false statements are protected. There is such a thing as prohibited speech. Yelling 'fire' when there is no fire is an example of it. Furthermore the test is whether a reasonable person believes they could telegraph intent. The test is - if you, a reasonable person, could reasonably believe that this judge's safety is in question? I will grant that it seems like the standard is fairly subjective, and libertarians are predictably siding with the expansive free-speech side of this argument, choosing not to read intent into something that other reasonable people might read intent into. I tend to err on the side of personal safety given that I read these comments as probably not true threats but also not definitely false. For what it's worth, though, I believe the sentence issued by the judge in question against Ross Ulbricht was unjust and unduly harsh and probably qualifies as cruel and unusual. Still, I don't recommend making suggestions of violence against an individual online, whether joking or not, and I don't think this is as clear cut as many are making it out to be.
- pessimizer 11y ago
  Even correctly quoted with "falsely", the 'crowded theater' example comes from a decision resulting from the successful prosecution of someone handing out fliers opposing the WWI draft.
- CWuestefeld 11y ago
  Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and the simple quip just is not an accurate statement about how Free Speech works in America. From another Popehat post (Ken's really serious about this stuff, and goes to great lengths to explain it), talking about Holmes's evolved jurisprudence years after making the fire/theater statement. Quoting: Holmes' Repentance — Too Little, Too Late Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. ... Holmes, a regretful Dr. Frankenstein struggling against his creation [that is, the fire/theater comment], dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking ... The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard http://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ http://popehat.com/2012/09/19/three-generations-of-a-hackney...

tptacek 11y ago

No. Start here: http://popehat.com/2013/10/07/meant-to-be-threatening-or-reasonably-seen-as-threatening/ http://popehat.com/2013/10/07/meant-to-be-threatening-or-rea... The exception to free speech for threats is "true threats". To prosecute a "true threat", the state must establish one or both of: * The subjective test, of whether it was the speaker's intent to convince the object of the threat that they were in danger * The objective test, of whether a reasonable disinterested observer would conclude that the speaker's language telegraphed an intent to actually commit harm. Threatening to stuff a judge in a wood chipper on an Internet message board clears neither of these two hurdles. It's facially not a true threat. An attempt to investigate it as such is an abuse of prosecutorial power. Hence the uproar.

rayiner 11y ago
The internet is a weird place, to be sure, where the standards of what a reasonable person would take to be a true threat are ill defined. But the comments at issue here seem squarely in the vein of: "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." (the comment at issue in Watts v. United States, which held that political hyperbole is not a true threat).
Aqueous 11y ago
I can see how a reasonable, disinterested person might read these comments either way. Specifically, some of the comments that were supposedly 'obviously' not threatening have to be taken in the context of the entire conversation in which they were made, and clearly some of the comments here are referring to a specific act against a specific person. How do you determine whether these comments 'definitively' telegraph intent? What is the criteria for determining that they definitely don't telegraph intent? In the case of the "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." comment, you have to closely read the comment to determine that there is no actual intent here, because the entire statement is conditional on the 'If they ever make me carry a rifle..." portion of the sentence, which at the very least makes it not an immediate threat. In some of these comments, there is no such qualification, the presence of which would make it fairly obvious that in this case there is no credible threat. These comments are not nearly as clear cut or objective as people are making it out to be since you can't determine from the specific language people are using that this is definitely not an immediate threat. EDIT: A lot of people are modding me down without making a substantive counterargument. Using the text of the comments please highlight the portions that prove objectively that there is no threatening intention please.

hyperpape 11y ago

It's also worth noting that the "fire in a crowded theater" analogy comes from a terrible decision that was overturned: http://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ http://www.theatlantic.com/national/archive/2012/11/its-time....

BurningFrog 11y ago

The main free speech issue here is the gag order.

mwfunk 11y ago

This is an extremely reasonable point to make, and AFAICT Aqueous wasn't arguing against anyone, just adding context to the discussion. I seriously don't understand why anyone on any side of this issue would downvote any of his comments in this thread. Looking at all sides of an issue is critical, even more so when it's a legal issue, even more so when you vehemently disagree with the legal system about it. No good ever comes from shutting down meaningful conversation about this stuff, all that happens is that people get louder, dumber, more polarized, and vastly less informed. I think most people here are frustrated at what appears to be an abuse of the legal system, and when you're on the outside looking in and wanting to change what you see, it's so freaking important to understand why things are the way they are. If you don't, then you're just setting yourself up to be trivially shouted down by the people on the inside because you don't understand the system, so how could you know how to fix it?

hyperpape 11y ago
So, he referenced an overturned supreme court case and stated what appears to be like...just his opinion, man. On the other side, a statement about the standards for threats given by a former federal prosecutor. So it sure looks like he's just bullshitting about the case. If somehow that's not true, Aqueous should work to improve on conveying that they actually have evidence for what they're saying. Hacker News is overrun with people making "reasonable sounding" points that are just factually wrong. And when they don't bother to offer a real argument for them, downvotes seem in order.
- Aqueous 11y ago
  As long as we are making fallacious appeals to authority, we also have here an actual judge who fucking issued the gag order and who approved the subpoena whose justification is under dispute. We might as well look at the argument of these other actual, currently federal lawyers who agree with what I am saying. Everyone here seems so certain of themselves, it's hard to believe there's ever any debate in an actual court of law! We should just start trying cases in the court of Hacker News. Look, everyone here seems to agree that the 'reasonable person' standard is the standard, though I misstated it in the beginning. My point is simply that two reasonable, disinterested people can disagree about what constitutes a threat. This does not seem to be a belief that justifies personal attacks, but apparently it is. But I essentially just walked into a room full of knee-jerk libertarians and mumbled that maybe their blanket view of free speech perhaps deserves some scrutiny, especially when we are also discussing violence in a country with a long history of violence (i.e. people making good on threats). As a matter of fact we just had a case last week where an individual made a vague threat in private company, said company didn't make anything of it, and then he went and murdered 9 innocent people.

Lazare 11y ago

> Free speech doesn't include yelling fire in a crowded theater, That is false as a matter of well established US law. That was used as an evocative argument in a long ago debate about what US law should be, and that side lost. > nor does it include making suggestions of physical violence against a judge. That is also false as a matter of well established US law. > describing a specific act of physical violence [...] against a specific person who also happens to be a public official [...] could cause that person, if they are reasonable, to feel that their life was in danger. That's the standard. That is not the standard. > Edit: or cause other reasonable people to believe that the individual's life was in danger That is also not the standard. This is not a matter of opinion, and this is not a grey area. That's not how the "reasonable person" test actually works, and that's not how the "true threats" exception to the first amendment is actually defined. I understand that it might seem reasonable to you that someone "could" fear for their life as a result of the comments, or even that any reasonable person could do so, or even that they would. You might even be right. But as a matter of law, that doesn't matter.

Aqueous 11y ago
Edit: or cause other reasonable people to believe that the individual's life was in danger Actually I believe the 'reasonable person' test is the standard, though I stated it imprecisely. I guess 'telegraphed the intent to actually commit harm,' is how I'd edit it if I still could as tptacek said.

mariodiana 11y ago

If you can't wish someone dead, this isn't a free country.