Yeah, I'm not a lawyer but the system seems honestly nonsensical. They found the law inconvenient, so the court just effectively added a "clear and present danger" clause to the law. If there were problems with people abusing their freedom of speech, then you'd think the natural response would be to amended the bill of rights - and not just a bunch of unelected judges dreaming up something that seems "reasonable"

I honestly can't speak to "reasonable", but this format of jurisprudence has been common for the better part of 4000 years (see Jewish law and case law that pops up in the Bible's old testament, especially the tanach).

Case law doesn’t exist in the United States of America. You might be thinking about medieval England, or ancient Persia, where a king or judge’s word becomes law. In the USA, people are judged individually and are equal before the law. One exception, that is traditional, but not enumerated in law, is that the Supreme Court can strike down a law that it deems unconstitutional, but may not amend or make new laws itself. Lower courts havee Ed no such power.

That's completely wrong.

First, every court of appeal can strike down a law as unconstitutional. The Supreme Court is only special in that there is no further appeal.

Second, case law absolutely determines the interpretation of each text, and each court is mildly bound by its own precendent (via stare decisis), and completely bound by the precedent of superior courts.

Third, there is no tension between these facts and people being judged individually and being equal before the law. The law must (in principle) be applied equally to everyone.

> First, every court of appeal can strike down a law as unconstitutional.

Any federal court, not just the courts of appeal.

Mostly right, but [0] is out-of-date, was overturned, and is a zombie free speech trope that is resistant to any headshot ever tried: https://www.theatlantic.com/ideas/archive/2019/08/free-speec...

I find the debunkers of this myth to be overzealous, or at least confusing.

You can be charged with a crime if you knowingly, falsely yell "fire!" in a crowded theater and someone gets hurt as a result.

The case you linked is not actually a ruling on whether you can do this.

The biggest problem with the trope is that it plants in people's heads the idea that there was EVER a Supreme Court case where the defendant was accused of yelling "fire!" in a crowded theater.

In reality, the phrase was an analogy used to justify the conviction of a man who committed the heinous crime of… making and distributing leaflets opposing the draft in World War I. So for all the high minded rhetoric in the First Amendment, it may not provide all that much protection if your speech inconveniences the government sufficiently.

One might also be tempted to draw inferences from the fact that Schenk, the man whose speech was considered not worth protecting, was a socialist pacifist, while Brandenburg, whose free speech was considered more worthy of protection, was a KKK leader promoting violence against Blacks and Jews. In the US, protecting the civil rights of Nazis has become a litmus test of civic virtue across the political spectrum. Unfortunately, that protection is extended far less vigorously and consistently to other political views.

https://en.wikipedia.org/wiki/Schenck_v._United_States

https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

https://en.wikipedia.org/wiki/National_Socialist_Party_of_Am...

Hmm it sure sounds like "government abridging the freedom of speech of individuals" to me