I prefer to apply the principle of charity when replying to others' arguments. You chose the most uncharitable reading of my invocation of the 'silly' 'yelling fire' prohibition. Obviously I'm talking about the situation where it is false - and that is exactly my point. Not all lies or false statements are protected. There is such a thing as prohibited speech. Yelling 'fire' when there is no fire is an example of it.
Furthermore the test is whether a reasonable person believes they could telegraph intent.
The test is - if you, a reasonable person, could reasonably believe that this judge's safety is in question?
I will grant that it seems like the standard is fairly subjective, and libertarians are predictably siding with the expansive free-speech side of this argument, choosing not to read intent into something that other reasonable people might read intent into.
I tend to err on the side of personal safety given that I read these comments as probably not true threats but also not definitely false.
For what it's worth, though, I believe the sentence issued by the judge in question against Ross Ulbricht was unjust and unduly harsh and probably qualifies as cruel and unusual. Still, I don't recommend making suggestions of violence against an individual online, whether joking or not, and I don't think this is as clear cut as many are making it out to be.
Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and the simple quip just is not an accurate statement about how Free Speech works in America.
From another Popehat post (Ken's really serious about this stuff, and goes to great lengths to explain it), talking about Holmes's evolved jurisprudence years after making the fire/theater statement. Quoting:
Holmes' Repentance — Too Little, Too Late
Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. ...
Holmes, a regretful Dr. Frankenstein struggling against his creation [that is, the fire/theater comment], dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking ...
The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard
Even correctly quoted with "falsely", the 'crowded theater' example comes from a decision resulting from the successful prosecution of someone handing out fliers opposing the WWI draft.
Furthermore the test is whether a reasonable person believes they could telegraph intent.
The test is - if you, a reasonable person, could reasonably believe that this judge's safety is in question? I will grant that it seems like the standard is fairly subjective, and libertarians are predictably siding with the expansive free-speech side of this argument, choosing not to read intent into something that other reasonable people might read intent into.
I tend to err on the side of personal safety given that I read these comments as probably not true threats but also not definitely false.
For what it's worth, though, I believe the sentence issued by the judge in question against Ross Ulbricht was unjust and unduly harsh and probably qualifies as cruel and unusual. Still, I don't recommend making suggestions of violence against an individual online, whether joking or not, and I don't think this is as clear cut as many are making it out to be.