Monday, April 24, 2017

Fire in a theater

liberals / progressives have been protesting the free speech rights of conservatives... some might think that those who claims to be "liberal" would be for free speech... they would be wrong... but it's not because liberals are anti-free speech... it's because those who are anti-free speech are not really liberals; they're socialists; they're communists; they're authoritarians of various stripes and creeds.

for instance, a group known amongst themselves as "Antifa", which is short for "Anti-Fascists", recently caused a violent protest at a rally for "Free Speech" in Berkeley, CA... Berkeley is well known for it's historic connection with free speech and rallies upholding a tradition of free speech... the aptly named "Free Speech Movement" (FSM) was a student movement in 1964-1965 on the campus of the University of California at Berkeley... many demonstrations, rallies, and marches took place on and around the Berkeley campus during the FSM.

much of the FSM was counter-culture (i.e. counter conservative), so perhaps that explains the backlash of the Berkeley area when conservatives chose this location to usurp the idea of FSM and to apply it to conservative ideals... being counter to the accepted counter-culture of Berkeley, should we refer to this as counter-counter-culture?

however, the Antifa protesters have a rationale for their suppression of free speech... they say that there are limitations on free speech, and you can't "shout fire in a theater"... but who, in their minds, are shouting "fire"?... well, they say that the free speech rally conservatives are saying things which are tantamount to inciting violence.

i give kudos to the Antifa for connecting "Fire in a theater" with "Incitement to violence"... however, they seem to have missed a couple of things... one, there are legal tests which determine whether free speech can be suppressed... and two, they are literally inciting violence against the free speech rally, so isn't that hypocritical?... Antifa says, no, they are justified in inciting actual violence to shut down those who may use free speech to say things Antifa finds hateful.

some history:

  • in Schenck v. United States (1919), Oliver Wendell Holmes Jr., Supreme Court justice, laid out the "fire in a theater" test, where free speech must be curtailed when there is a "create a clear and present danger that they will bring about the substantive evils" of harm to others... this Supreme Court doctrine said that "expressions which in the circumstances were intended to result in a crime, and posed a "clear and present danger" of succeeding, could be punished."
  • from Schenck followed Dennis v. United States (1951)... "The Court ruled that Dennis did not have the right under the First Amendment to the United States Constitution to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government."... essentially, Dennis applied the "Clear and Present Danger" doctrine.
  • however, in Yates v. United States (1957), the Supreme Court ruled in favor of free speech... "[The] First Amendment protected radical and reactionary speech, unless it posed a 'clear and present danger.'"... and, in this case, Yates determined that "failing to distinguish between advocacy of forcible overthrow as an abstract doctrine and advocacy of action to that end, the District Court appears to have been led astray by the holding in Dennis that advocacy of violent action to be taken at some future time was enough."... essentially, Yates did not meet the requirements of a "present" danger, and advocacy of violent action without a present call to actual action does not meet the requirements.
  • and then Brandenburg v. Ohio (1969) threw the baby out with the bathwater... "[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'."... in short, unless someone specifically calls for specific action by specific people, they are able to say whatever they please... had the Brandenburg test been applied to Schenck, Dennis, or Yates, the outcome may have been different in each case.


in short, Antifa want to impose Schenck on conservatives and to ignore Brandenburg... meanwhile they hide behind Brandenburg to justify their actual violence against conservatives.