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View Diary: Federal grand jury probing Tiller murder (208 comments)

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  •  How do you get around Brandenburg v. Ohio, (2+ / 0-)
    Recommended by:
    burrow owl, wishingwell

    Hess v. Indiana, NAACP v. Claiborne Hardware, etc.?  In Brandenburg, the SCOTUS held that for speech to be unprotected, it must intentionally produce a high likelihood of imminent harm.  In Claiborne Hardware, the SCOTUS applied the Brandenburg test to a situation in which the NAACP had organized a boycott, and an NAACP official was heard to say, "if we hear of any of you going in them racist stores, we'll break your damn neck."  The SCOTUS held that the official's statement was protected speech, reasoning that the First Amendment does not permit the imposition of liability on speech, but merely for the consequences of violent conduct, and liability cannot be imposed on the basis of mere association by itself with people committing acts of violence.  There must be advocacy of imminent violent action.

    If BillO said, "Someone needs to go to Tiller the Baby Killer's church this Sunday and murder him," and if the evidence indicated Roeder watched that broadcast and shot Tiller as a direct result, that may pass the Brandenburg test and impose liability on BillO and Faux News.  And as I suggested upthread, if there were evidence that Roeder, or someone communicating with him (e.g. Cheryl Sullenger) were communicating back and forth with BillO about murdering Roeder, then you've got interdependence that would implicate BillO in conspiracy.  But again, hateful speech in and of itself isn't gonna be enough, sorry to say.

    •  I doubt even this would pass the (2+ / 0-)
      Recommended by:
      burrow owl, FreeStateDem

      Brandenburg Test:

      Someone needs to go to Tiller the Baby Killer's church this Sunday and murder him," and if the evidence indicated Roeder watched that broadcast and shot Tiller as a direct result, that may pass the Brandenburg test and impose liability on BillO and Faux News.  

      "Imminent" under the Brandenburg test means pretty much right now, or in the next several minutes.  Maybe -- maybe - under the right circumstances, an hour?  You'd pretty much have to have O'Reilly standing in front of the church, seeing Tiller with a gun, and saying, "Go in there and shoot the guy."  

      Also, there has to be a real likelihood that your words are going to cause imminent lawless action.  Saying to millions of people, "Somebody needs to murder Tiller" is probably going to be protected, vile as it would be.  Standing in a place of proximity to Tiller and telling somebody with a gun, "Go shoot Tiller now!" probably would not be protected.

      It is very very hard, with our First Amendment, to impose criminal culpability on words alone.  There has to be a real immediate connection, and proof tha the words caused -- not influenced, but caused -- the action.  Brandenburg uses the word "caused" as in "likely to cause imminent lawless action."  "Likely to influence somebody to commit lawless action" is NOT enough to impose criminal liability under the First Amendment.

      •  "restaurant" means fast food. (1+ / 0-)
        Recommended by:
        burrow owl

        The "imminent" standard is a laughable exercise in the culture of extreme impatience and instant gratification, and it fails utterly when confronted with terrorist groups who plan and act on long timelines.

        Bin Laden issues a video telling his followers to commit a very specific assassination or bombing "at an opportune moment" or "before the 2012 election," and technically that's protected speech.

        It should not be.

        And the same case applies to stochastic terrorism, of which Glenn Beck is Exhibit A.   After the Unitarian Church shooting by one of his devotees, he should have thought twice about what he was saying.  After three Pittsburgh cops were murdered by another of his devotees, he should have changed his behavior.   Now after two CHP officers were wounded by another of his devotees on the way to shoot up the Tides Foundation after he ranted about Tides, it's time to say enough is enough.

        Once is a tragedy, twice is a terrible coincidence, and three times is a pattern.  

        •  False analogy (2+ / 0-)
          Recommended by:
          burrow owl, wishingwell

          Bin Laden issues a video telling his followers to commit a very specific assassination or bombing "at an opportune moment" or "before the 2012 election," and technically that's protected speech.

          The Bin Laden situation is not the same at all, because Bin Laden has done other things -- financing training, organize training, set up a communications system -- in furtherance of the acts he promotes.  You are not talking about speech alone with Bin Laden.  So, yes, if he told his followers -- those in the organization that he helped to set up and finance -- to engage in a specific assassination, that would NOT be protected speech, because of the OTHER things that he did.  That would be, at the very least, a conspiracy, because of the things he did in support of that action.

          •  the fact of his priors does not.... (1+ / 0-)
            Recommended by:
            greeseyparrot

            .... change the standard.  The speech stands or falls regardless of other actions the individual may have committed in the past.   For the hypothetical diatribe he issues tomorrow, you would have to prove that he did more than say the words: that he provided material aid to the people who ended up doing the deed.  

            Otherwise Glenn Beck is culpable for three dead cops and three wounded ones, since he knew, after the Tennesee church shooting, that some of his devotees are crazy enough to do such things, and yet he egged them on.  

            The law deals with the speech, not with the speaker.

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