deezums

iTrader: (3)

Brandenburg vs Ohio says she might not be allowed to say that, at least as far as I can tell.

Which was a thing because people were talking **** on the draft, so the government made it illegal to talk **** on the draft. National security and all that. **** your rights.

bahurd

iTrader: (8)

I'm certainly not a legal scholar, and didn't follow the Cohoon matter, but how did she incite “imminent lawless action.” or pose "a clear and present danger of bringing about the substantive evils that Congress may prohibit.” Did she post something beyond "hey, I have Covid"? Or are you referring to another subject entirely?

deezums

iTrader: (3)

For the record, neither am I. But as I see it, She doesn't have to. If you can be charged for saying "fire" in a crowded theater, then why not here? Is it only because people aren't able to be immediately trampled to death?

The Court held that the government cannot punish inflammatory speech unless that speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

There's nothing there saying they have to wait for that lawless action, they just need to think it's possible.

Joe Perez

iTrader: (8)

At first, I was like



but then I was like




Brandenburg is irrelevant here, as Cohoon's tweet was not "directed at inciting or producing imminent lawless action."

Except that it actually did incite lawless action... on the part of the Sheriff's Dept.


I mean, we can debate about whether Cohoon did or did not at some point have Cov19, but that will lead down a rabbit-hole of conspiracy theories, deep state, etc.

What matters, as bahurd sort of alluded to, is that it doesn't matter, insofar as her right to write or say pretty much anything she dam well pleases with *very* few limitations. (I would not, as bahurd did, go so far as to call this "negligent," as posting false statements online about one's own health condition is not likely to cause harm to others.)


But, getting back to Brandenburg, what happens when one's own speech does in fact incite others to lawless action, against one's self?

(Obviously, proving intent would be challenging in this scenario, which renders the question moot in practice, but still interesting in theory.)



Key points to take away from this:

1: The government cannot legally control speech except in very narrowly-defined circumstances.

2: This, of course, does not matter to the government, which increasingly considers itself to be above the law.

3: Whether the government can compel a person or corporation to not censor the speech of others is something which I predict will make for some good judicial theater.

deezums

iTrader: (3)

Bullshit.

Who gets to say it wasn't directed at inciting violence or lawless action? I am pretty sure it's not Joe Perez. What if it caused another lockdown, or another anti-coof protest? That's lawless action. Amazingly vague laws, for the win.

Joe Perez

iTrader: (8)

The jury. And then later, the appellate court.

But, more seriously, the "yelling fire in a crowded theater" mention from earlier was interestingly relevant. While something which is commonly believed to be universally true, it's actually mostly false. And, here's the interesting part: The Brandenburg decision is the reason why you CAN yell "fire!" in a crowded theater, as Penn & Teller (and, more recently, Christopher Hitchens) love to do.

It all boils down to Schenck v. United States (1919), which I assume you're familiar with. It was a pretty ratty piece of jurisprudence in which the court cowtowed to the War Dept, and the precedent which it set is generally agreed to have been overturned by Brandenburg, for the sole reason that the Brandenburg decision laid down very narrow and specific criteria, which considers both the speaker's intent and the likelihood of the speech to produce imminent lawlessness.




Well, not every law can be about not carrying ice cream in your back pocket while walking down the street in Oregon on Sunday while a horse is present.

But, in all seriousness, that's one of the beautiful things about the Common Law system which we in the US inherited from England. It's virtually impossible for the legislature to predict every possible thing which might need a law written about it, and so the courts are entrusted with the authority to examine novel situations for which no specific statue applied, weigh the merits of the case, and come to a decision which then serves as precedent (case law) in the future.

bahurd

iTrader: (8)

I used the word in it's common day-to-day use not in a legal definition. Because, having already been tested she knew she didn't have Covid and was either negligent in her post that she was infected or willfully misleading others. Take your pick... In either case, in my opinion it didn't meet the standards of Brandenburg.

Next topic...

Joe Perez

iTrader: (8)

Heh, good call.

deezums

iTrader: (3)

I am aware, and figured Branenburg overturned everything except what I've already been saying.

Next topic, though, I guess.

olderguy

iTrader: (19)

Why can't I go to page 3?

Edit: I posted the above and ended up on page 3

Joe Perez

iTrader: (8)

Specificity of laws...

deezums mentioned "vague" laws. And this got me thinking back to something which occurred while I was in law school in Santa Clara (San Jose / Silicon Valley) about 8 years ago. Disclaimer for those who weren't around in 2013: I am not a lawyer. I left during the first year to accept a job offer in NYC, which turned out well. So, technically, I'm a college dropout. (There's a thread about it somewhere.)

I lived just off-campus in a small, rundown townhouse complex which was owned by the university, and it was dedicated 100% to law students. It was a very nerdy little enclave full of people who didn't party late into the night on weekdays. Or weekends. Or ever. Because we were all hitting the books most of the time. It was glorious, and I look back on those days fondly.

My housemate was a PhD student from Austria named Markus. Very cool dude, and was impressed when I set up a VPN so that he could watch futball matches from some website that wasn't available in the US.

He already had a law degree, and was in an advanced international-studies program which required him to spend a year in the US, studying US law. It was his first time in the states. I think the university matched us up for housing because we were the only two male students in that year's class who were in our mid to late 30s.

I'd previously spent a bit of time living and working in Germany, and was (and continue to be) a big fan of the culture and ethics in that region of Europe. So we spent a lot of evenings comparing experiences, asking questions, and discussing the things which fascinated us about each other's worlds. It was, in a nutshell, the very embodiment of the stereotypical sort of wholesome experience which the parents of 18 year olds envision that the college experience will be like for their children.

In the law library, there was a bin where you could grab a Pocket Constitution, sponsored by one of the big legal research database firms. Lexis-Nexis, I think. We'd both grabbed a copy, independently.

And it totally blew his mind.

He'd never seen the US Constitution before (to be fair, I still haven't read the Österreichische Bundesverfassung), and it really fascinated him. Specifically, he was blown away by how small it was.

In Austria, as with most (all?) countries in Europe which were essentially re-formed from scratch after the end of WWII, the constitution is utterly massive. It encompasses the equivalent of what we, in the US, now refer to as the Code of Federal Regulations. In the immediate post-**** era, these folks were apparently quite sensitive about wanting to make sure that the founding document was extremely clear and specific about damn near everything relating to not being a fascist. So they very quickly and hastily wrote a HUGE amount of law, and that became their constitution.

And he just couldn't believe that the United States was founded on the basis of a document that fit into a couple of pages, laid down only the barest essentials of how to assemble a government, and left everything else up to the interpretation of future generations.

And that was a real eye-opening experience for me, and provided fuel for many nights of discussion. The fact that the founders of the United States, uniquely in all of history, recognized that they were not perfect, and entrusted both their peers and their descendants to iron out all of the fuzzy stuff based on a very simple framework.


So, yeah. Law, in the US, is an organic thing. It was intended to be this way. Because times change, technologies are created, unforeseen situations arise, and humans, as a broad generalization, sometimes act in unpredictable ways. Like saying "Let's kill all of the Jews" or "Let's tear down this wall."


And that experience in the autumn of 2013 gave me the perspective to realize what an amazing thing is the trust which a roomful of pretty average folks invested in all of us back in 1787.


So, yeah. Law in the US is in fact quite often rather vague. This is exactly what the founding fathers intended, because they trusted us to clarify it as needs arose.


The burden is upon us to reveal whether that trust was justified.

deezums

iTrader: (3)

Then the tree needs watering, because our elected representatives do not represent the majority interest no matter what color they wear. We already failed, somewhere. What dreams they had are already dead.

https://scholar.princeton.edu/sites/...litics.doc.pdf

Figure 1 on page 10 (or 573) shows it all.

And I would argue that written vague laws such as the one previously discussed would be against everything they stood for, as they can be used to strip someone's rights at any time. The Constitution is supposed to protect us from officials wielding arbitrary power.

And not even those intentionally vague laws, If I can burn down a Wendys and walk free, how are all laws not arbitrary?

DNMakinson

iTrader: (3)

I was wondering if someone would point out that it is technically legal to yell "fire" in a crowded theater.

I don't understand the reference to Mr. Hitchens, who has been dead for some time now.

DNM

Joe Perez

iTrader: (8)

Yes, this is true.



Here's a transcript of Hitchins yelling FIRE in a small auditorium. It's a bit dated: https://ariadacapo.net/archives/borr...transcript.pdf

Annoyingly, I'm trying to find a reference to a clip online of Penn & Teller (ok, just Penn) yelling "FIRE" in a sold-out Vegas theater during their act. He did it every night, and I know that I have it archived somewhere on this 8TB media drive on the other end of my home network, but I'll be damned if I can find a specific reference to it online, no matter what search terms I use. It doesn't help that Penn & Teller did a lot of generic fire-eating magic as part of their act in the early days, insofar as search engines are concerned.

One guinea! I offer a reward of one guinea to the person who can nail down a clip of Penn Gillette shouting FIRE in a crowded theater, which he did hundreds of times.

hector

I know I'm a bit late to the gay wedding cake parade, but wasn't the reason the shop refused to bake the cake on religious beliefs? At least that's what I vaguely remember. If that's the case, a business can be forced to bake a cake because they can't discriminate against homosexuals under the laws of Colorado, but the business owners religious beliefs can be discriminated against? What if it were a Jew denying to make a cake for a wannabe ****? Or a woman denying to make a cake for a man because of his toxic masculinity? A black baker denying a white man because of slavery? And as an aside, does the cake that's baked have to be good to not face further accusations?

There was video posted on the "other" politics/current events thread where a gay coffee shop owner (Seattle maybe?) kicked out a group of Jesus freaks for having anti-abortion paraphernalia (definitely had to look up how to spell that) or something. But before doing so made sure to liken what they were doing to him having ---- sex with his partner in front of them and how they would like if he did to them what they were doing to him? I wonder how people felt about that? Wouldn't that be discrimination? And wouldn't having sex in public in front of people forcibly, be illegal?

I'll tell you how I stand on the matter and stop asking questions. If a business does not want my patronage because I'm "x", why would I want to give them money? I'm not one to hang around where I'm not wanted. I'm just saying, it's 2021 in the USA, not 1950 in the failed Confederacy. There are more than enough places to get what you need/want*, and the places with these horrible business practices will surely perish or change their ways.

Also, I know this whole thing started about Twitface being forced to not moderate content. Obviously, I don't agree with Twitfaces policy but I do believe they have the right to do what they want just like I have the right to not have a Twitface account, which I don't.

*= or we can just lower our expectations like WaPo suggested

Joe Perez

iTrader: (8)

For the purpose of elevating yourself into a media celebrity.

I'm not sure whether you're asking that question ironically or if you're serious.

Victimhood is the new social currency. And so a class of people have arisen who seek out ways in which to become victims, and then publicize this status.

It's not a horrible idea, from a purely analytical perspective. If you are seeking to destroy a certain class because they offend you by way of their beliefs, then skillfully manipulating public opinion to make them seem to be the aggressor (and yourself the victim) is actually a pretty decent tactic.

good2go

iTrader: (2)

This bring to mind the predatory tactics of certain disabled people who find profit in terrorizing small businesses over ADA compliance issues, regardless of whether or not they have ever actually visited the particular small business and/or been personally deprived of access to it in any way whatsoever. Current law encourages rewards this.

hector

It was quite a few years ago but I read an article on this. And it was more a lawyer encouraging (well actually paying) a disabled person to visit small shops in NYC that were obviously built before the ADA accessibility standards became requirements. The lawyer would then bring a lawsuit against them. The issue was that once the complaint went before a judge the business had 30 days to correct the issue or close down until it did. And I think the lawyer was from Philly. My memory is not perfect on what I read but the act was quite sickening and of course all under the guise of helping the disabled. Now I'm not saying this doesn't help the disabled but there must be a better way to do this with at least better conviction at the core.

Which brings me to remember some of my international travels. Back in 2002, I made it out to Amsterdam, Paris, and a day trip to Nurburg. I specifically remember the moment it dawned on me on the walk to Notre Dame. I ask my wife (ex-wife now) if she notices anything different. Do you see any disabled parking spaces? Any accessible ramps? Did you notice any accessibility standards anywhere else? For that matter, have you even noticed anyone with a disability enjoying the wonderful weather in mid-April? I've been to a couple of other countries but all on this side of the Atlantic and can't recall accessibility standards there either. Of course I haven't left the country now for almost ten years so things have probably changed.

Joe Perez

iTrader: (8)

This is a fairly common tactic. Fortunately, there are some protections on businesses whose premises predate ADA and are thus grandfathered. The trouble usually comes from not realizing that certain types of construction or remodeling on the premises can trigger the whole premises to suddenly become required to be fully ADA compliant. Which, of course, is often literally impossible in tiny, urban structures.

Big construction firms in major cities typically have people on staff whose whole job is to analyze this effect and advise clients on how to avoid it. I can tell you for a fact that my own place of business, which has been remodeled and added onto several times since the 1950s, is built right up to the very edge of this law, to the point where the big addition on the east end (which more than doubled our non-studio square footage) is technically a separate building. It was built 100% ADA compliant, but left the main building alone from a legal standpoint. The two buildings are connected by a "covered walkway." Which is made of concrete. And is fully enclosed. And is about an inch long and two stories high.

Closely related, in my opinion, to patent-trolling. That's where a group of lawyers form a company which buys up all sorts of totally random patents on the cheap (such as from bankruptcies, estate sales, etc) and then searches high and low to find companies which might, in some miniscule way, be infringing said patent, and offering to settle out of court with them.

DNMakinson

iTrader: (3)