There seems to be a common misconception around free speech: that it is limitless. It isn't.
"As the Supreme Court held in Brandenburg v. Ohio (1969), the government may forbid “incitement”—speech “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action” (such as a speech to a mob urging it to attack a nearby building)."
Also, there is this standard. It's senseless to allow unlimited extension of a particular freedom to implode the system that provides those freedoms in the first place. Also related to the paradox of tolerance concept.
Twitter has a professional moderation staff dealing with many orders of magnitude more content and, while they do not do a perfect job there is clearly at least some good faith effort going on there. They should still do a better job.
Contrast this with Parler, who just doesn't give a damn. Complete abrogation of responsibility, except to kick off accounts that make fun of their "influencers" (shout outs to Devin Nunes's Cow!).
Do you see the difference here? Do you see why there might be some, shall we say, recalcitrance to do business with the latter?
It is tragic this is the law. It explicitly removes agency from those who commit crimes. The rioters/insurrectionists were all bad people who made bad decisions on their own accord. The concept of incitement dilutes their responsibility. Trump didn't hold a gun to their head and make them storm the capital. Hell, he didn't even suggest it.
IMHO, incitement isn't real. It's just spreading blame to people who just made sounds come out of their head. It's barely different than a thought crime.
Incitement is a legal concept that has existed for centuries. You are free to make your opinion against it, but it’s been long-established and you’d have to do more to remove it other than reducing it to a “thought crime.”
Legally, incitement is actually pretty constrained to immanent lawless action--i.e. someone doing something bad right now, not at some undefined point in the future, in clear terms.
The Volokh Conspiracy discussed this just the other day:
Pinning incitement onto Trump will be a bit tricky, if nothing else that he's so damned inconsistent and incoherent that it's really hard to tell what he intends to do. He's done enough other illegal shit that there's no real need to try and nail him with incitement, because it might reduce other cases elsewhere.
There are others involved in this whole affair that have almost certainly crossed that line, and they should be made into an example by being prosecuted to the fullest extent of the law. There are some things that are not to be tolerated in a democracy if you want to keep that democracy.
On January 6th, people marched on the Capitol, injured many Capitol police members, and broke in while literally calling for Pence's head and having erected a gallows.
On January 7th, Wood said "Get the firing squads ready. Pence goes FIRST."
Unless there was someone with an actual firing squad or what have you while he is speaking, it's not directed towards immanent lawless violence. Your own timeline points out that it was made a day later.
Now, that doesn't make it any less repugnant, it just means that this particular speech can't be incitement unless there's some other events that let it fit the standard.
Everyone has gone nuts lately. Even other lawyers like Ken White of Popehat were musing about some events being an "argument for the gallows" on Twitter.
"imminent lawless action" and "likely" are the important words here.
Imminent lawless action here usually means there's a specified timeframe (as clarified in Hess v. Indiana). Given that many people are explicitly talking about January 18th and January 19th violent action, it's hard for me to see how this standard isn't met. Daydreaming the overthrow of the government and murder of specific elected officials a week from now is not protected speech, especially when made credible by violent action a few days ago.
> Given that many people are explicitly talking about January 18th and January 19th violent action
Unless one of those "many people" is Lynn Wood himself, that doesn't count. You can't just stitch statements from multiple unspecified people together to meet the requirements. Now, he's said a lot of things and maybe there's something not mentioned here that I don't know about that rises to that standard, but the fact that you think that merely "daydreaming" can rise to the standard shows me that you probably haven't read what they were saying in https://en.wikipedia.org/wiki/Brandenburg_v._Ohio
> Unless one of those "many people" is Lynn Wood himself, that doesn't count
I completely disagree. The context in which speech is uttered has bearing on whether it is likely to cause immanent [sic] lawless action. If someone else says January 18th, and you provide concrete suggestions and a plan to do so, without mentioning January 18th, you're not magically off the hook.
We were discussing imminence, though, and you switched targets without actually addressing how Lynn Wood's statements meet the imminence prong of the test. You can't refute statements about one prong of the test by hopping on another. You're supposed to meet all prongs of the test.
You're also contradicting Volokh, a well-known and well-respected liberal first amendment lawyer's analysis by vaguely gesturing at one of the cases discussed in that very article.
Yes, but immanence [sic] doesn't mean "right this second". It means at an understood point in the future, not during some undefined and indeterminate timeframe.
If everyone else is talking about violent action January 18th, and then you talk about people you'd like killed in the same general conversation, you don't walk just because you never specified the specific time yourself.
> You're also contradicting Volokh, a well-known and well-respected liberal first amendment lawyer's analysis by vaguely gesturing at one of the cases discussed in that very article.
Argument by authority. We have constitutional lawyers on the other side arguing the bar set in Brandenburg is met by Trump's comments alone. e.g. Niehoff, Somin (who writes on Volokh Conspiracy, too). Let alone after the additional context of a violent outbreak and more outright threats.
> If everyone else is talking about violent action January 18th, and then you talk about people you'd like killed in the same general conversation, you don't walk just because you never specified the specific time yourself.
And where, precisely, is that proposition found to be found in law or precedent?
> We have constitutional lawyers on the other side arguing the bar set in Brandenburg is met by Trump's comments alone
And now you switch subjects again to Trump's comments when we were discussing Lynn's.
You're trying to gesture at an article you haven't even properly cited to blame a different person entirely which does nothing to establish that the authority gestured at even agrees with you in the first place.
Now, if you have, say, a link to a proper legal analysis saying here are these specific statements by Lynn and this is why we think they meet the tests based on these and these precedents, then go ahead and present that. But if you're just going to continue to switch topics instead of trying to make your claims more precise, then I see no reason to engage further.
> And now you switch subjects again to Trump's comments when we were discussing Lynn's.
"Let alone" circling back is too difficult to understand?
> Whether Lynn Wood's January 7th statement "Get the firing squads ready. Pence goes FIRST." meets the test for imminent lawless action.
And you don't think surrounding circumstances matter? E.g. would it be different to say this:
A) When there's an actual firing squad there, and Pence is 200' away?
B) When you're at the front of a riled-up crowd, some of whom you know to be armed?
C) When there had been violence and people hell-bent on killing Pence the day before, and others you're corresponding with are talking about mounting violent effort against the government in the next week?
D) As part of the baseline political discourse when there is no armed crowd and no recent political violence and no conversation about a specific date?
E) As part of a middle-school debate, when few tempers are inflamed?
The courts get to decide where "imminent" is, and we don't have a clear standard. This is why legal experts disagree. I think we can probably agree A is not OK and D-E is OK.
If we don't include 'C', it's becomes questionable whether Hitler's speech at the Beer Hall Putsch would be 'incitement', and it seems pretty clear to me that we should include it as such-- if not that, what is? Slightly veiling your coordination and inflammatory language gives you a blank check? I don't think so, and I would hope courts would agree.
I'm not likely to respond to you any further because I do not believe you are discussing in good faith.
This standard came in place after prior precedent jailed someone for peacefully protesting the draft. Be very careful what speech you let the government criminalize, it usually goes places you didn't expect.
For the record, the case of the draft protestor being jailed is where the phrase "shout fire in a crowded theater" comes from. Food for thought.
This is what Trump said during his January 6th speech:
"So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give… The Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue."
I'm not sure what your point is in quoting this. It very clearly is not incitement to violence. The objective he describes for the demonstration is that it will help convince legislators to vote the way he wants them to, by showing that lots of people feel the way he does. Being able to engage in such demonstrations is absolutely at the core of political freedom.
Perhaps that was the point you were trying to make, of course.
Whether or not speech constitutes incitement is governed by the imminent lawless action test.
"Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely." [0]
There's two sub-tests: intention and imminence. Let's start with was it imminent: the plain text is clear, the time was now-- undoubtedly, the call to action was not an obscure point in the future. Supporters were to immediately go down Pennsylvania Avenue to the Capitol complex. But what was Trump's intention? That analysis transcends the text as written. Therefore, we can't outright dismiss the speech as categorically not incitement, because the text alone is not sufficient in determining if the speech is incitement.
I posted his speech because my original comment's parent poster claimed Trump had not suggested his supporters make their way to the Capitol, which is false.
I don't see how any context can possibly make the quoted passage incitement to lawless action, because the text itself describes the objective and method - persuade legislators to vote a certain way by "giv[ing] them the kind of pride and boldness they need" (not by intimidating them with threats of violence, which would of course be illegal).
I'm not familiar with the geography of Washington D.C., but "walk down Pennsylvania Avenue" does not seem to me to be the same as "storm the Capital building".
Now, I suppose it's possible that some other part of the speech actually did incite violence, but if this is the worst part, it is not incitement to violence. Not. At. All.
There's a contextual history of Trump wishing violence on people: journalists, apprehended criminals, etc. -- it suggests, and it does not have to be "beyond a reasonable doubt", that Trump is OK with having violence deployed against his enemies and that, with the context of speaking to a bunch of gun-toting reactionaries, he is speaking through a lens where the employment of their guns is thus reasonable.
Further, in that speech quoted, Trump specifically says to his followers that Democrats should not be voting.
Trump says of the Democrats, "They’re never voting for anything, not even one vote". In context, it clearly means that the Democrats never vote the way he wants them to, not that the Democrats shouldn't be allowed to vote. (Note he then goes on to talk about whether the weak Republicans will vote the way he wants them to.)
I'm not aware that the demonstrators were toting guns.
Really, give it up. If you want to argue that Trump incited violence in this speech, you need to find another quote from it in which he does. The one above is absolutely not incitement, as is completely clear to anyone who is not blinded by partisan rage.
By the way, your country could do with less partisan rage right now.
"In context," when you remove Trump's say-the-quiet-part-loud advocacy of beating journalists and harming arrested criminals by bashing their heads off of the frames of cars while putting them into cruisers. And also ignore what he's said repeatedly in other speeches where he thinks he should be "given" another term and, oh right, where he straight-up mobster-ranted at Georgia's Secretary of State demanding he find him votes.
Sorry dude. We don't play half-blind here for the sake of your argument.
And if you want less "partisan rage"--well, plenty of the chumleys who stormed the Capitol are still at large, we can sure start there! Somehow, in comparison, I think me chuckling at Parler getting their just desserts doesn't even rate. ;)
> I'm not aware that the demonstrators were toting guns.
The oft-displayed photos show bats, a spear, body armor, helmets, etc. The QAnon enthusiasts arrested in Philadelphia were armed. At least one individual has been arrested for carrying a loaded pistol on Capitol grounds. It is utterly fanciful to suggest none of the rioters were armed.
Have you even forgotten Trump's exhortation that the "second amendment people" might "do something" about Hillary Clinton?
In order to believe that Trump did not incite violence you must overlook the way he's been beating the drum and fanning the flames all along. Writing out his meandering, discursive speech tries to remove from the picture what we all know he means and intends.
You're arguing that you have other evidence that Trump incited violence. Maybe you do. But the comment I was replying to was quoting a statement made by Trump at his rally, implying that it is evidence that he incited violence. It simply does not demonstrate that. It is not evidence of incitement. It just isn't.
If you believe X because of evidence Y, it does not follow that Z must also be evidence of X, just because you believe X (even if this belief is correct).
Not having the critical self-awareness to recognize this is likely to lead you to believe all sort of things that aren't really true, as you start thinking that everything you see confirms your existing beliefs, even when it doesn't.
It looks like we're at an impasse: you believe I lack objective awareness, and I believe you lack the willingness to recognize the nuance of human communication.
As previously established, intent is a key element of incitement. When you say:
> "giv[ing] them the kind of pride and boldness they need" (not by intimidating them with threats of violence, which would of course be illegal).
You are immediately excluding lawlessness, which defeats the complete exercise of the test (unless you have additional context to provide, which validates Trump's mental state convincingly excludes unlawful behavior). The point of the test is to examine if there was intent for unlawful behavior. Again, that would transcend the text. We would have to place ourselves in Trump's mind, and examine further, and then create a compelling argument for or against mens rea.
I also don't see anything particularly damning in those words, it seems usual Trump gibberish. But then, even before he announced the march ("Big protest in D.C. on January 6th. Be there, will be wild!"), many of his hardcore followers were already waiting for him to say something, anything that they could interpret as a coordinated action (all the "cross the rubicon" talk). So I'd say that this is not just a matter of taking some isolated phrases, but rather looking at the whole context of all that happened before, during and after the election and asking the question "To which degree was he consciously contributing to create and direct this climate that caused criminal action?"
Yeah, don't interpret my comment as a belief that Trump was unaware and didn't know anything could happen. You would need to be dumb to believe that, for example, he didn't know anything about the Proud Boys or QAnon as he claimed.
No, it objectively is not free speech! Threats and incitement aren't protected speech (Brandenburg et al.) and Parler's refusing to do anything about it; AWS cited 98 instances that they themselves provided Parler that weren't attended to.
> What is legal speech or not should be decided by courts
How would that work in practice? Say I run a forum and I want to take down a post that's calling for a mosque to be blown up. Should I need to hire a detective to discover the identity behind the account, file a lawsuit, serve that person some papers, and wait for the case to make its way through the courts? Do I need to leave the post up while that's taking place?
This is what the companies do who want to take down copyrighted content, and what governments do when they want to take down illegal content. Why should any other standard apply?
Typically in such cases posts are placed in limbo - still present but usually inaccessible while legal questions are answered.
Courts should be making these decisions, not companies interfering in other companies.
Why?
Because at the end of the day these are questions "the people" need to answer, not unelected managers at tech companies.
A few people do not have the right to silence the voice of millions. That's what's happening, fundamentally, and it is being cheered, and you all somehow think this is going to end well.
It has been, and its enforcement is then passed on to some activists working for Big Tech or outsourced moderators working for $1 an hour. If people don't like how a specific person enforces this or interpreted a judge's rule, they must pony up the money to challenge in court.
You missed the point. Scale is what matters, not privacy.
The Supreme Court has ruled that free speech on private property is still protected when questions of scale are introduced. There are circumscriptions on that, but it is still protected.
You are either wildly misrepresenting what the courts have said, or repeating a lie that someone else has told you. In either case, please stop doing that.
Yes, there are circumstances where the courts have found that private actors have crossed the line into acting like the government (“state action”) and therefore have to follow rules set for the government. But they’ve only done this for private actors that have literally built an entire town and run it like the government. The seminal case in this area was about whether or not the first amendment applied in a company town (Marsh vs. Alabama).
The courts have never found that anything anywhere close to AWS falls under state action. Not only have they not did that, but they’ve said that state action only applies in cases where companies perform functions that are “historically the exclusive domain of governments”, such as running towns. Given that providing web hosting has neither been a government responsibility, nor has it been exclusively a government responsibility, there is a 0% chance that the courts would apply state action to a company like AWS.
There is also no interest by any member of the court to expand state action, liberal or conservative. The last case on the issue saw dissent based not around state action, but whether or not the private actor in question had taken over a contract that constrained them (a private actor bought a former public tv channel). The dissent wouldn’t even cover a case covering AWS.
Where does scale apply? I don’t recall some carve out in the constitution or in contract law. “Your home is your castle, unless a lot of Vikings show up”
If I buy every ticket in Yankee stadium and turn it into a rally for Some political issue, is the management required to just deal with it? What law requires that AWS host people who want to overthrow the government?
Again, you are absolutely wrong about that case and the doctrine (state action) it covers. I really wish people would stop repeating this nonsense.
Marsh vs. Alabama wasn’t decided because it affected a lot of people. It was decided that way because it was about a private company who literally ran an entire town. It was decided that because they were performing the functions of the government, the rules applied to the government should apply to them.
Since then, Marsh v. Alabama has been “limited to the facts.” Later precedent has clarified that state action only applies in cases where private actors take up duties that are “traditionally exclusive to the state” (Manhattan Community Access v. Halleck). No matter which way you slice it, AWS does not fall under this precedent.
