Again: if Twitter was held to the 1A standard, there is a great deal of content likely to cause imminent lawless action that they would be unable to block.
What's the difference between advocating violence and intending to cause violence?
The entire Brandenberg case is about the distinction, on this particular word.
Like I said, this is a hash of an argument.
The article, IMO, made it clear enough that information that causes violence but wasn't intended to cause violence is protected by the 1st amendment.
There is a clear legal standard for incitement. Sacks hasn't articulated it. Either he doesn't know what it is, or he does know, but smartly recognizes that it cuts directly against his argument. The point he wants to make is that First Amendment jurisprudence already provides a basis for service providers to eliminate the most objectionable content. It does not.
Particularly in the case of incitement: if Twitter was held to the 1A standard, it would be unable to block a great deal of content likely to cause imminent lawless action.
But I don't think it's a fair criticism of his article. I clearly understood from his writing that the "Incitement" exception only covers information intended to cause violence in the near future.
I don't know if he's familiar with the precise legal language, but even if he is, it wouldn't be appropriate to use it in this article for laypeople. He's using common English.
You're right that it's a very narrowly defined carve out that has since been narrowed further, but it's definitely from the 1940s from the cited Chaplinsky v. New Hampshire.
Carelessness in fact checking seems to becoming more common even among otherwise competent people.
First Amendment Twitter runs a cottage industry of dunks on well-regarded lawyers saying stupid things about 1A jurisprudence. I'm not a lawyer, but I follow 1A Twitter, and I think this would qualify; for instance: the "incitement" section refers to "clear and present danger", which is the Schenck standard, which was famously overturned by Brandenburg. My understanding is that this, to 1A law, is about as fundamental as knowing the difference between a hash table and a tree is to a software developer.
This entire section is just wrong. Fighting words are extremely narrowly defined, to the point where if you don't get punched in the face within a few minutes of saying something, it is not fighting words under law. The original definition of fighting words was laid out at a time when honor duels were still common, and that is the environment under which they were defined. Since then, every higher court decision referring to them has narrowed, not expanded their definition. There is no way a slur on the internet can be construed as fighting words as the law currently exist.