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PaperclipPerfector  11mo ago (text post)   29677 thread views

Culture War Roundup for the week of December 18, 2023

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116-132, but it's also over 2100 words, and nearly 13,000 characters. I quoted from the end of it.

I can give more examples -- the reference to Schneck is another low-point -- but I didn't think I needed to fisk the entire thing lest people think Colorado judges are short-tongued.

Right, 116-132.

Nevertheless, your implication that the Court gave short shrift to the First Amendment issue is, again, disingenuous.

Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.” They didn't cite it for its holding. Courts do that all the time; hence the common explanatory note, "overruled on other grounds."

To be clear, I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception (though I note that none of the dissenters raised that issue, unless I missed it). But your criticisms of the Colorado court's First Amendment analysis are completely unconvincing.

Why is the citation to Schenck a low point? It is cited only for the principle of "the importance of context in holding that “the character of every act depends upon the circumstances in which it is done.”

It's exceptionally unclear if that principle remains good law, not just in the awkward question of what extent Schenck was overruled (technically Brandenburg only explicitly overruled Whitney v. California), but in the sense that exact and literal text is part of the central holding of Schenck. It might get read out less often, but it's as core the famous line:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

More recent cases have been highly limited in the extent they have accepted such expansive reads, but even in the specific context of Brandenburg and Davis that cry for Circumstances was recognized as permitting widely restrictive limits on speech based on whatever Current Thing was, given the extent WWI and WWII and anti-communism had twisted past precedent.

But more deeply than that, if you're trying to write an opinion on a controversial subject, and you've got a claim you think blindingly obvious, you should be able to pick a precedent that isn't a byword for bad and motivated law, whose central holding applied broadly to speech we generally permit, and who you don't have to worry about (and fail to!) note as overruled on other grounds.

  1. That specific language from Schenck remains good law. See, eg, Boim v. Fulton County School Dist., 494 F. 3d 978, 984 (11th Circuit 2007); Satawa v. Macomb County Road Com'n, 689 F. 3d 506,517 (6th Circuit 2012).
  2. Your entire criticism seems to be that they cited Schenck, but that is a meaningless claim,because the court clearly did not rely on Schenck.
  3. More importantly, I agree that their free speech analysis is incorrect, but not because they cited Schenck, and certainly not because they engaged in only a limited discussion of the issue, as you falsely implied.

If only you applied this same level of scrutiny to the Colorado judges as the poster you're criticizing.

  1. As I said, " I am extremely skeptical that Trump's speech was not protected under the First Amendment, because incitement is a very narrow exception."

  2. What level of scrutiny do you imagine that to be? OP's claim (which was that the First Amendment analysis by the court was superficial) does not pass even a minimal level of scrutiny.

"the character of every act depends upon the circumstances in which it is done."

Sure, and Schenck itself holds that the circumstances of distributing anti-draft pamphlets yields a character akin to shouting "fire" in a crowded theater. I don't find this line of logic very convincing because some partisan actors will come along and deem anything "un-American" (flag burning?) as inherently insurrectionist.

Subverting American policy for financial gain of your son is insurrectionist behavior therefore Biden is ineligible to run.

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