> The much-misconstrued statement of Justice Oliver Wendell Holmes that free speech does not give you the right to shout fire in a crowded theater is now being used to curtail speech that might provoke a violence-prone minority.
This is very incorrect to say it is misconstrued. In Schenck vs US, the Court was prosecuting a pacifist who distributed pamphlets protesting the involuntary draft in World War I, arguing that forced drafts constituted involuntary servitude and were therefore prohibited by the constitution.
The decision was an extremely bad one and the passage by Holmes was inflammatory rhetoric since the case was clearly never about shouting fire in a theatre, it was about peacefully and reasonably protesting unconstitutional action by the government.
The clear and present danger test was eliminated in 1969 when the Court established instead a "imminent lawless action" test as the line that speech must cross. Again though, interpretation of what speech will lead to "imminent lawless action" is not defined so this is a poor test as well. Clearly in some cases peaceful criticism of violent religious practices, as well as harmless cartoons that are not even disparaging have lead to imminent lawless action. A more reasonable view would be to note that those who engage in lawless action should be responsible for their own actions, regardless of whatever speech or opinions they claim made them engage in criminal behavior. No one makes you engage in criminality. It is something you choose to do.
On the contrary, the cases you cite are actually very clearly cases of protected speech. The "imminent lawless action" test has a third element: intent. Unprotected speech has to also have the intent of causing "imminent lawless action."
A more reasonable view would be to note that those who engage in lawless action should be responsible for their own actions, regardless of whatever speech or opinions they claim made them engage in criminal behavior. No one makes you engage in criminality. It is something you choose to do.
This seems like a false dilemma: either blame the speaker or the doer -- not both?
Moreover, the question is open as to whether or not some speech in some circumstances can provoke violence where otherwise none would have occurred. All you are saying in response to the question is an unqualified "no."
It is not a false dilemma. droithomme was offering an alternative to punishing a speaker for another actors unlawful action, not stating that one or the other must be done. No dilemma. No false dilemma.
> The decision was an extremely bad one and the passage by Holmes was inflammatory rhetoric since the case was clearly never about shouting fire in a theatre, it was about peacefully and reasonably protesting unconstitutional action by the government.
It's an interesting theory that the thirteenth amendment prohibits conscription, but it's never been upheld in court.
The Supreme Court has not evaluated this issue. During Vietnam there were a few cases that looked like they were going to get to the Supreme Court, and the conscripts were released with honorable discharges in order to avoid the court being able to rule on the cases as the issues were made moot through the discharges.
OK, thanks you are right. Interesting how they cite the 14th's change in the concept of US citizenship to be primary over state citizenship as strengthening this presumed right of federal conscription.
Is it? Considering that the 13th amendment was pushed through by the Union in the closing months of the Civil War, which itself was fought by conscripts, it's hard to justify an interpretation that outlaws conscription.
The majority of Civil War troops were volunteer. The Civil War draft, an issue at the end of the war, was never challenged on constitutionality. It should be noted that the Conscription Act of 1863 was considered unconstitutional by the populace and resulted in riots.
It's questionable whether many would support it given the way it worked is you paid a $300 fee in order not to go. Usually a poor recent immigrant to the US would be sent in your place. Do you think this scheme would fly these days and be considered legitimate?
Of course that scheme was unfair, which is one of the reasons they did it differently for World War I and World War II. Also, it arguably violates the equal protection clause of the 14th amendment, but that wasn't in place until after the Civil War.
US law actually designates most adult male citizens under the age of 45 as members of the "unorganized militia", and the Constitution explicitly gives Congress the power to call up the militia for active military service. Defending your country when called upon is also generally seen as one of the duties of citizenship. It occurs to me, offhandedly, that universal conscription would both satisfy the equal protection clause and reinforce the notion that military service was one of the duties of citizenship.
This is very incorrect to say it is misconstrued. In Schenck vs US, the Court was prosecuting a pacifist who distributed pamphlets protesting the involuntary draft in World War I, arguing that forced drafts constituted involuntary servitude and were therefore prohibited by the constitution.
The decision was an extremely bad one and the passage by Holmes was inflammatory rhetoric since the case was clearly never about shouting fire in a theatre, it was about peacefully and reasonably protesting unconstitutional action by the government.
The clear and present danger test was eliminated in 1969 when the Court established instead a "imminent lawless action" test as the line that speech must cross. Again though, interpretation of what speech will lead to "imminent lawless action" is not defined so this is a poor test as well. Clearly in some cases peaceful criticism of violent religious practices, as well as harmless cartoons that are not even disparaging have lead to imminent lawless action. A more reasonable view would be to note that those who engage in lawless action should be responsible for their own actions, regardless of whatever speech or opinions they claim made them engage in criminal behavior. No one makes you engage in criminality. It is something you choose to do.