Theoretically, how much outrage do I need to manufacture to get the legal system to ignore the Brandenburg test and prosecute today's flavor of thought villain?
Edit: to wit, the parent post claim in ridiculous action: https://news.ycombinator.com/item?id=34811787
what fact is that? who enforces the "can't" ?
Regardless, does that remove the offense?
I could be wrong, but I doubt it.
"Kill x people" is fine and protected. "Kill x people at y date at z mall" is not.
Note:
>Hess uttered, "We'll take the fucking street later" or "We'll take the fucking street again." Hess was convicted in Indiana state court of disorderly conduct.
>The Supreme Court reversed Hess's conviction because Hess' statement, at worst, "amounted to nothing more than advocacy of illegal action at some indefinite future time." In contrast to such an indefinite future time, the Court emphasized the word imminent in the "imminent lawless action" test of Brandenburg. Because the evidence did not show that Hess' speech was intended and likely to produce "imminent disorder", the state could not punish Hess' speech.[3][4]
https://www.law.cornell.edu/wex/brandenburg_test
> The test determined that the government may prohibit speech advocating the use of force or crime if the speech satisfies both elements of the two-part test:
> The speech is “directed to inciting or producing imminent lawless action,”
> AND
> The speech is “likely to incite or produce such action.”
[snip]
> The Supreme Court in Hess v. Indiana (1973) applied the Brandenburg test to a case in which Gregory Hess, an Indiana University protester, said, “We’ll take the fucking street later (or again)." The Supreme Court ruled that Hess’s profanity was protected under the Brandenburg test, as the speech “amounted to nothing more than advocacy of illegal action at some indefinite future time.” The Court held that “since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”
> In NAACP v. Claiborne Hardware Co.(1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied the Brandenburg test and found that the speech was protected: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
And because I also see this doctrine over-applied online:
https://www.law.cornell.edu/wex/fighting_words
> In Texas v. Johnson (1989), the Supreme Court redefined the scope of the fighting words doctrine to mean words that are "a direct personal insult or an invitation to exchange fisticuffs." There, the Court held that the burning of a United States flag, which was considered symbolic speech, did not constitute fighting words.
> In R.A.V. v. City of St. Paul (1992), the Supreme Court found that the "First Amendment prevents government from punishing speech and expressive conduct because it disapproves of the ideas expressed." Even if the words are considered to be fighting words, the First Amendment will still protect the speech if the speech restriction is based on viewpoint discrimination.
The page I linked to links to multiple law review articles on the subject:
http://openscholarship.wustl.edu/cgi/viewcontent.cgi?article...
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?art...
http://via.library.depaul.edu/cgi/viewcontent.cgi?article=28...
Suffice it to say: If someone online claims a speech act isn't protected due to the fighting words exemption, no it isn't.