I find myself struggling with wanting to subscribe to a absolutist view, but stopping myself short of too many what ifs. I think Holmes "clear and present danger" test is overbroad and places too many restrictions on wartime speech. I understand the government's interest in avoiding disorder during times of war, but Americans' free speech should not trampled because of the choices government leaders make in spite of citizens wishes. If anything, a time of war should encourage Americans to be outspoken and voice their opinions to the government/others. The government is supposed to reflect our interests and values, yet it seeks to limit speech at arguably the most important time Americans' voices should be heard. We see what happens in other countries when speech is second rate to a government's interests to protect from unrest like the Tiananmen Square Massacre. I find the "incitement" test is a step in the right direction from the "clear and present danger" test. The "incitement" test better safeguards individuals who's speech may unintentionally incite people into lawless action. Sometimes people have emotional outcries that were never meant to cause harm, but instead were meant to vent frustrations. Often the line is can be easy to draw in cases were people directly call people to commit acts of violence. Regardless we are still in a situation where different judges can come to very different conclusions on what speech is likely to incite imminent lawless action and was intended to do so.
That pull between absolutism and the “what ifs” is exactly why free speech doctrine has swung so much over time. And, yes, Brandenburg does a better job protecting emotional or frustrated speech, even if it still leaves room for judges to disagree about when words shift from venting to intentional incitement.
I really resonate with Preston’s sentiment of contradiction and going too far in an absolutist view of the first amendment. I find myself more convinced by an anti-categorical argument and more inclined to take a very context based approach. I can’t remember which justice offered this approach now, but I do feel that it’s about as fair as it could get in balancing the competing interests that people have on this issue. It also ties back to another post about when the courts get decisions wrong, and a question that was posed about whose responsibility it is to set the record straight or how we can even go about seeing through the falsehoods spread that allow for the construction and employment of concentration camps. I feel the same way here as I did there. While we might feel very little faith in our current Supreme Court justices to go forth on a path of fair and honest truth, I think we all need to engage in the very deep and difficult critique of what “worst case” we want to be protected in when it comes to free speech. Where would you want the line drawn for yourself? Would you want to be able to say Eat the Rich at a rally and not end up in court with a charge of inciting violence towards rich people who live in the buildings people protest outside of? I understand that, on the left especially, we can see our actions as nonviolent and nonthreatening, but if people want to offer a standard for limiting speech I think we need to be REALLY sure that it can’t be reapplied in a way that limits speech with the best of intentions. In a perfect world, the context based approach works in favor *whoever’s* ideological view, and it seems like the best option, but it relies too much on judges and justices to get the “truth” right, and I’m not willing to bank on that.
One thing I’d add is that absolutism and anti-categoricalism both emerge as responses to historical failures of judgment. The Court’s worst speech decisions — from WWI sedition cases to the Red Scare — weren’t caused by a lack of doctrinal flexibility but by the collapse of judicial courage under political pressure. That history is why some people cling to rigid rules: not because they’re perfect, but because they’re predictable even when judges aren’t.
Maybe the question is not just where we want the line drawn, but what kind of doctrine is least likely to be weaponized during moments when fear or moral panic makes all sides suddenly less tolerant than they imagined.
I’ll preface my comment by saying that it is incredibly difficult, at least for me, to subscribe to one theoretical justification for speech protection (absolutism, categorization, or balancing) over another. As we read these freedom of speech cases, however, I find myself leaning more and more towards Justice Black’s absolutist understanding of the First Amendment. I fully recognize the dangers of permitting incitement, fighting words, hate speech, etc., but I think there is an even greater danger in judge-made categories of speech, or in allowing judges to subjectively weigh a person’s interest in free expression against the government’s interest in national security, maintaining “peace and good order,” or other interests.
The facts of cases like Rice v. Paladin Enterprises make it difficult for me to fully subscribe to absolutism. But I wonder if acts such as publishing books that serve no purpose other than to teach people how to commit criminal acts could be punishable under some other criminal theory, such as aiding and abetting. Or perhaps it could be argued that punishing those who speak is a misapplication of punishment, and that it is better to punish those who act: the violent mob instead of the one who delivers the speech, or the one who builds a bomb after reading a book instead of the publisher of the book.
But even as I write this I begin to second-guess myself and think that maybe an absolutist approach is not best because of the level of harm that some speech can cause (and, of course, has caused). I suppose this all is to say that I do not envy judges who must decide these cases.
I find myself struggling with wanting to subscribe to a absolutist view, but stopping myself short of too many what ifs. I think Holmes "clear and present danger" test is overbroad and places too many restrictions on wartime speech. I understand the government's interest in avoiding disorder during times of war, but Americans' free speech should not trampled because of the choices government leaders make in spite of citizens wishes. If anything, a time of war should encourage Americans to be outspoken and voice their opinions to the government/others. The government is supposed to reflect our interests and values, yet it seeks to limit speech at arguably the most important time Americans' voices should be heard. We see what happens in other countries when speech is second rate to a government's interests to protect from unrest like the Tiananmen Square Massacre. I find the "incitement" test is a step in the right direction from the "clear and present danger" test. The "incitement" test better safeguards individuals who's speech may unintentionally incite people into lawless action. Sometimes people have emotional outcries that were never meant to cause harm, but instead were meant to vent frustrations. Often the line is can be easy to draw in cases were people directly call people to commit acts of violence. Regardless we are still in a situation where different judges can come to very different conclusions on what speech is likely to incite imminent lawless action and was intended to do so.
That pull between absolutism and the “what ifs” is exactly why free speech doctrine has swung so much over time. And, yes, Brandenburg does a better job protecting emotional or frustrated speech, even if it still leaves room for judges to disagree about when words shift from venting to intentional incitement.
I really resonate with Preston’s sentiment of contradiction and going too far in an absolutist view of the first amendment. I find myself more convinced by an anti-categorical argument and more inclined to take a very context based approach. I can’t remember which justice offered this approach now, but I do feel that it’s about as fair as it could get in balancing the competing interests that people have on this issue. It also ties back to another post about when the courts get decisions wrong, and a question that was posed about whose responsibility it is to set the record straight or how we can even go about seeing through the falsehoods spread that allow for the construction and employment of concentration camps. I feel the same way here as I did there. While we might feel very little faith in our current Supreme Court justices to go forth on a path of fair and honest truth, I think we all need to engage in the very deep and difficult critique of what “worst case” we want to be protected in when it comes to free speech. Where would you want the line drawn for yourself? Would you want to be able to say Eat the Rich at a rally and not end up in court with a charge of inciting violence towards rich people who live in the buildings people protest outside of? I understand that, on the left especially, we can see our actions as nonviolent and nonthreatening, but if people want to offer a standard for limiting speech I think we need to be REALLY sure that it can’t be reapplied in a way that limits speech with the best of intentions. In a perfect world, the context based approach works in favor *whoever’s* ideological view, and it seems like the best option, but it relies too much on judges and justices to get the “truth” right, and I’m not willing to bank on that.
One thing I’d add is that absolutism and anti-categoricalism both emerge as responses to historical failures of judgment. The Court’s worst speech decisions — from WWI sedition cases to the Red Scare — weren’t caused by a lack of doctrinal flexibility but by the collapse of judicial courage under political pressure. That history is why some people cling to rigid rules: not because they’re perfect, but because they’re predictable even when judges aren’t.
Maybe the question is not just where we want the line drawn, but what kind of doctrine is least likely to be weaponized during moments when fear or moral panic makes all sides suddenly less tolerant than they imagined.
I’ll preface my comment by saying that it is incredibly difficult, at least for me, to subscribe to one theoretical justification for speech protection (absolutism, categorization, or balancing) over another. As we read these freedom of speech cases, however, I find myself leaning more and more towards Justice Black’s absolutist understanding of the First Amendment. I fully recognize the dangers of permitting incitement, fighting words, hate speech, etc., but I think there is an even greater danger in judge-made categories of speech, or in allowing judges to subjectively weigh a person’s interest in free expression against the government’s interest in national security, maintaining “peace and good order,” or other interests.
The facts of cases like Rice v. Paladin Enterprises make it difficult for me to fully subscribe to absolutism. But I wonder if acts such as publishing books that serve no purpose other than to teach people how to commit criminal acts could be punishable under some other criminal theory, such as aiding and abetting. Or perhaps it could be argued that punishing those who speak is a misapplication of punishment, and that it is better to punish those who act: the violent mob instead of the one who delivers the speech, or the one who builds a bomb after reading a book instead of the publisher of the book.
But even as I write this I begin to second-guess myself and think that maybe an absolutist approach is not best because of the level of harm that some speech can cause (and, of course, has caused). I suppose this all is to say that I do not envy judges who must decide these cases.
Assalamualaikum. Wonderful set of articles. MashAllah