Elon Musk makes $43 Billion offer for private buyout of Twitter

saintmdterps said

It used to be that free speech ended right around the analogy of walking into a crowded theater and shouting "fire" when there was no fire. Now I'm not sure even that low bar hasn't been dropped. Part of the problem is that our population has no sense of context. Many take at face value some idiot's post on FB about how great it was 4 years a go when gas was 1.99, but lose the context of a pandemic lockdown in place. Said idiot garnishes hundreds or thousands of "likes" from other idiots.

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The thing is, 'you can't shout fire in a crowded theater' never really was the law - that was dicta from a Supreme Court case in 1921 about the Espionage Act and Justice Holmes was musing generally about the limits of free speech in a case where the Court upheld the arrest for violating the act with conduct (demonstrating against the draft) that would easily be considered free political speech by modern standards. I think it has stuck in the minds of people for generations because it's easy to understand and it's sensible . . . but it isn't really accurate as to the First Amendment when it comes to problematic misinformation. It's highly contextual.

The actual legal standard comes from a 1969 case that involved the arrest of KKK members in Ohio. In Brandenburg, the Court ruled that the standard for when violent speech is no longer protected by the First Amendment is when it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”. Imminent is the key term - it can't be some generalized notion of violence.