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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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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.

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