Free speech doesn't include yelling fire in a crowded theater
This is incorrect. This is a silly characterizations on the limits of free speech (of which some certainly do exist). Ken, the writer at Popehat, has written many times on this very topic. To address the most obvious problem with your statement, free speech DOES include yelling fire in a theater, unless that cry is false.
Further, Ken has also written at great length about what constitutes a "true threat", and demonstrated why NONE of the comments falls into that definition.
Moreover, you pick the most egregious of the statements. Saying that there should be "a special place in hell" for the judge can't possibly be interpreted in that manner. Anyone trying to do so is obviously acting in bad faith.
"Yelling fire in a crowded theater" was originally a metaphor for why we should jail anti-war protestors for handing out anti-draft pamphlets as spies under the Espionage Act; The standard established in Schenck was later overruled in Brandenberg, narrowed severely to describe 'Speech likely to incite imminent lawless action', with implication that this only applies to a riot. Up until the Patriot Act, we were fairly strongly against prescriptive prohibitions on speech, like gag orders; The optimist in me says ten years down the line we probably will be again. The pessimist in me is too busy weeping in a corner for his rights and having repetitive panic attacks to provide constructive criticism.
The fact that the phrase persists is one of the odder facts of Constitutional history, and the original ruling one of the more obviously loathsome of the set. Say what you like about the necessity of getting entangled in WW1, but the Founders would certainly speak strongly on the topic: https://en.wikipedia.org/wiki/George_Washington's_Farewell_A... , and choosing to suspend blatantly obvious First Amendment protections over that, as opposed to some more controversial position, always struck me as an unlikely outcome.
PS: The inner pessimist just perked up to ask what the hell I'm blathering about "speech" this and "speech" that, since we suspended due process entirely when we chose to empower highwaymen with civil asset forfeiture, and what's the point of debating more nuanced problems when that's standing law, when the people in charge think that's Constitutionally valid? Dude's depressing.
And in the case of it being false, the restriction isn't on the grounds of free speech, but is on the grounds of property rights of the theater in which your actions have done damage.
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.
This is incorrect. This is a silly characterizations on the limits of free speech (of which some certainly do exist). Ken, the writer at Popehat, has written many times on this very topic. To address the most obvious problem with your statement, free speech DOES include yelling fire in a theater, unless that cry is false.
Further, Ken has also written at great length about what constitutes a "true threat", and demonstrated why NONE of the comments falls into that definition.
Moreover, you pick the most egregious of the statements. Saying that there should be "a special place in hell" for the judge can't possibly be interpreted in that manner. Anyone trying to do so is obviously acting in bad faith.