Can’t have too much thinking, now can we.
The mob is on a rampage right now, and it really is indefensibly nonsensical. But then, that’s what mobs do.
My general sense of things (and in a way, this goes to Rob’s “how’d you get there” thread), is that the glob we call “BigTech/BigMedia/DemocratParty” suffers from a lack of historical knowledge. US law in the area of freedom of expression is actually quite mature and well defined. But for the BTBMDP types, it is apparently far too permissive, so they are seeking to construct their own set of rules.
And they’re getting wrapped around the axle in the process.
It’s not surprising, in a way, that people are misinformed. I’d venture that the majority of Americans, if asked what are the permissible limits of free speech under the law, would say something about “fire in a crowded theater”.
Nevermind that somehow the word “falsely” has been dropped from the public consciousness, the real issue here is that Schenck v. United States, and the “clear and present danger” standard it established, is no longer controlling law. It was superseded (overturned is a better word) in 1968’s Brandenburg v. Ohio. I have many points of disagreement with William Brennan, but his expansive view of the First Amendment is not among them.
“Clear and present danger” is, as a matter of US Constitutional law, a dead letter.
And yet “fire in a crowded theater” (never anything more than a bit of over-wrought rhetorical flair from Oliver Wendell Holmes in the first place) remains in the minds of most Americans the only thing they know of First Amendment law.
So BTBMDP continues to flounder around, trying to square an impossible circle, and beclowning themselves in the process. They will, eventually, find themselves arriving at one of two places: Either the expansive freedom of expression view codified in Brandenburg, or absolute totalitarianism. There aren’t any other options.
At present, they are obviously heading toward totalitarianism. We’ll see if they have the stomach for it. We’ll also find that they don’t have the control they think they do: I predict now that Twitter is a “dead man walking”. They are entering a period of sustained contraction. And the dirty little secret the media ignores is that Twitter’s decline will take them down as well.
As it relates to online discussion and the potential for censorship, my interpretation of Brandenburg leads me to conclude that comments along the lines of “Joe Politician should be taken out and HUNG!” or “I’d like to shoot Joe Politician!” are permissible. My view isn’t just a function of Brandenburg. It’s more based on a general belief that freedom of expression should always be the starting point, and comments like that must enjoy the presumption of being hyperbolic. Any public figure is going to have supporters and detractors, and we shouldn’t take the detractors’ inflammatory statements any more literally than we might take a supporter’s declaration that “I love Joe Politician so much I want to have his baby!”.
Which is to say, wildly enthusiastic or critical rhetoric is the norm, and trying to discern the line between allowable and impermissible levels of criticism is impossible.
But that is exactly the line that BTBMDP thinks they can draw. It’s no surprise that, in practice, their decisions have proven to be overwhelmingly partisan. It would be far better for them, operationally and probably legally, if they were to simply affirm their adherence to Brandenburg.