How many times have you heard American normies use the phrase "shouting fire in a crowded theatre" in creating a hypothetical scenario to justify restrictions on freedom of expression?
The phrase originated in a now-overturned Supreme Court case, Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. wrote:
Schenck formed the basis of the clear and present danger test which CuckTears members now (incorrectly) believe is still a part of American law. Perhaps they should spend less time drinking soy and more time in a library.
Quite frankly, Schenck was an odious and overbroad ruling which greatly curtailed political freedom in the United States for 50 years; the case originated when the Wilson administration aggressively prosecuted opponents of the WW1 draft for "sedition". Charles Schenck was a member of the Socialist Party of Philadelphia who merely printed and distributed flyers telling young men to not submit to conscription; for this, he was convicted of three counts of sedition under the Espionage Act of 1917.
The Supreme Court curtailed First Amendment rights even further in Abrams v. United States (1919), by establishing the bad tendency test, allowing the government to restrict speech that had the mere tendency to incite or cause illegal activity. Perhaps Justice Holmes changed his mind on Schenck, because he offered a vigorous dissent in Abrams, noting that:
In the following decades, the clear and present danger test and the bad tendency test were used to crack down on left-wing activists well into the 1950s, and thereafter against the civil rights movement. In Gitlow v. New York* (1925), Whitney v. California (1927), and Dennis v. United States (1951), the Supreme Court upheld the Smith Act and ruled that even the abstract advocacy of overthrowing the United States government was not protected by the Free Speech Clause.
Earl Warren's tenure on the Supreme Court marked a significant shift on First Amendment jurisprudence. In Yates v. United States (1957), the Supreme Court refused to dispose of the clear and present danger test but noted that short of failing the test, the First Amendment protected "radical and reactionary" speech. Four years later, in Noto v. United States (1961), the Court struck down the Smith Act conviction of a Communist Party USA member because the trial evidence did not include "the use of language reasonably and ordinarily calculated to incite persons to action, immediately or in the future".
Finally, in 1969, the Warren Court formally replaced the clear and present danger test and the bad tendency test with the imminent lawless action test in Brandenburg v. Ohio (1969).
Brandenburg struck down an Ohio state law which criminalized the mere advocacy of criminal behaviour, and distinguished between such advocacy and speech that was likely to incite imminent lawless action. It established a two-prong test consisting of the imminence requirement and the likelihood requirement. In Hess v. Indiana (1973), the Court further expanded on the imminence requirement, holding that "advocacy of illegal action at some indefinite future time" should not be punishable by law. Since then, federal appeals courts cited (and still cite) Hess to protect speech advocating or threatening unspecific lawless action in the indefinite future.
So how might we apply Brandenburg to Nathan Larson's speech on ********? Or, in the words of a CuckTears member, "How is posting something like this not prosecuted?"
The answer is simple: the vague advocacy of lawless action (killing and raping women) on an obscure forum satisfies neither the likelihood requirement nor the imminence requirement. It falls short of criminal incitement and is consequently protected by the Free Speech Clause of the First Amendment. And without threatening language and threatening intent directed against a specific individual, speech on ******** does not satisfy the definition of a "true threat" (see Watts v. United States (1968)).
Would ********'s speech run foul of the clear and present danger test and the bad tendency test? The answer would probably be yes. But those tests also allowed the federal government to oppress the speech of nonviolent political activists, and for those reasons, both tests are normatively undesirable and should be intolerable in a free and fair society. So think twice before making a stupid reference to a case that was overturned over 50 years ago.
As I've noted, again and again, a society's commitment to freedom of expression is a bellwether of its approach to other political and human rights. Its ability to tolerate dissenting, obnoxious, and even morally reprehensible views is a hallmark of its political development. An independent judiciary's protection of free speech -- however radical and unpopular -- serves to moderate the state's immense power (and temptation) to gradually chip away at our civil liberties.
I don't see how that's crazy at all.
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*Gitlow also selectively incorporated the freedom of speech and freedom of the press provisions of the First Amendment to the states under the Due Process Clause of the Fourteenth Amendment.
Read my previous thread about Trump's executive order against TikTok and the First Amendment.
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