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srmorgan's avatar

Question about the Limits of the First Amendment?

Asked by srmorgan (6740points) October 1st, 2015

The First Amendment states that Congress shall make no law restricting freedom of speech (my paraphrase), but what about speech that in some contexts could be called seditious?

Were comments by Mike Huckabee about not obeying or recognizing a decision by the Supreme Court legalizing same-sex marriage seditious?

When does one cross the line? What are the limits on restricting speech if it can be called seditious?
Just curious

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16 Answers

zenvelo's avatar

Attempts at outlawing “seditious” speech have been passed by Congress.

However, since Brandenburg v. Ohio, 395 U.S. 444 (1969), was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. The Court held that government cannot punish inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action.[1] Specifically, it struck down Ohio’s criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence. In the process, Whitney v. California[2] was explicitly overruled, and doubt was cast on Schenck v. United States,[3] Abrams v. United States,[4] Gitlow v. New York (1925), and Dennis v. United States.[5] (From Wikipedia article on the 1918 Sedition Act.)

SavoirFaire's avatar

While the Sedition Acts of 1798 expired before they could be subjected to judicial review, the US Supreme Court has declared them unconstitutional at least twice in side remarks to other decisions. The first was in New York Times Co. v. Sullivan (1964), and the second was in Watts v. United States (1969). And as @zenvelo notes, the point was made more directly in Brandenburg v. Ohio (1969). So the direct answer to your question is that sedition is not sufficient grounds for limiting speech under US law.

That said, there are limits to speech. Schenck v. United States (1919) established the clear and present danger standard. Then, depending on who you ask, Brandenburg either replaced or clarified that standard by establishing the imminent lawless action standard. Under this standard, speech is not protected if it is both intended and likely to incite a person or persons to break the law in the immediate future. Merely advocating that others break the law in the indefinite future—as Huckabee has done—was explicitly ruled as not falling under this standard in Hess v. Indiana (1973).

jerv's avatar

To add a little to what @SavoirFaire said, there are certain types of insults that can straddle the line between “protected speech” and “inciting violence”. Most “Hate Speech” falls in that grey area, but generally how far First Amendment protection goes depends on teh harm of the words.

If someone says, “I hate niggers!”, then that is protected speech. A mere statement of opinion.
If someone jokes about hanging a black person, that may be a figure of speech or an imminent threat of violence.
If someone says either of those things and a black person is found hung to death in the vicinity, there may be separate charges, or at least some uncomfortable questions.

The comments from many Conservatives who feel that allowing same-sex marriage and Obamacare robs the federal government of any and all legitimacy and thus can be ignored at a whim are generally about on-par with saying, “I am not going to do the job I was elected to, and may break other laws!”. That may be grounds for recall or a reason to vote for their opposition next election.

Huckabee’s comment about ignoring SCOTUS is nothing more than a bald-faced admission that he will refuse to perform his lawfully appointed duties if elected to office. That’s not enough to prosecute, merely persecute. The Tea Party’s talk of “Second Amendment solutions”, however, is potentially enough to get one arrested though; it’s a bit hard to find a non-violent way to shoot people, so such remarks could be considered a credible threat and lose any/all First Amendment protection.

CWOTUS's avatar

Shouting that “I will not abide by this awful decision!”, even while pounding a fist on a table while spitting mad and red in the face is, until the moment when one has to either abide or not-abide by the decision, just speechifying – bloviation. Politicians do it all the time, from every side. It’s in no way unique to Governor Huckabee or Kim Davis or “the right” in general. (And then even if one follows through and “doesn’t abide”, it’s probably just going to be a misdemeanor offense, and likely not even prosecuted, depending on the local prosecutor’s discretion.)

Saying that “You should not abide by this decision,” as calm, sober advice (outside of a lawyer-client relationship, or superior-to-subordinate order) is tending toward a gray area. Giving that as legal advice to a client or as a direct order to a subordinate could be grounds for prosecution.

And suggesting that “We should pick up our weapons and hunt down those who support this decision to kill them,” is clearly an actionable threat.

But there is nothing holy about Supreme Court decisions. They get decisions wrong all the time, and it tends to muck up our legal systems – and lead to outright violence – with some regularity. I’m not a lawyer or law student, but surely you’ve heard of the Dred Scott decision. That was wrong even for its time, and was very likely an indirect cause of the Civil War. And it wasn’t even a close vote: it was a 7–2 decision.

Just as there is no such thing as “settled science” there is no such thing as “settled law”.

Dutchess_III's avatar

^^^^ I always think, what a blow to the black citizens. Can you imagine? );

SavoirFaire's avatar

@jerv Hate speech is fully protected. See, for example, R.A.V. v. City of St. Paul (1992) and Snyder v. Phelps (2011). There isn’t really a gray area. Hate speech that violates the imminent lawless action standard is still unprotected, but only in virtue of violating that standard (and not in virtue of being hate speech). This is one reason why attacking hate crime legislation as “censorship” or “thought policing” is a canard: hate crime legislation does not invent new crimes; it modifies the punishment scheme for existing crimes on the basis of motivation (which is already common in our legal system).

@CWOTUS Although according to Huckabee, who is a(n honorary) lawyer, Dred Scott is still the law of the land.

jerv's avatar

@SavoirFaire Not fully, no. The main reason that Phelps won in Snyder v. Phelps was simply that being outrageous and offensive and hurting someone’s feeling in the process is not considered harmful enough to justify stripping one of their constitutional right to free speech. What part of having a bunch of picketers peaceably assembling to state an opinion qualifies as “imminent lawless action”? Was there a reasonable expectation of violence? Did they WBC actually interfere with the funeral as opposed to standing well away from it?

In short, Snyder fell far short of proving that Phelps’ actions were enough to warrant abridging constitutionally-granted rights. In other words, “hate speech” is conditionally protected. Just as in R.A.V. v. St. Paul which was more an argument over technicalities than about whether burning crosses is protected free speech or not, the devil is in the details. It’s not that “hate speech” is fully protected so much as the means generally used to attempt to prosecute it are flawed.

SavoirFaire's avatar

@jerv Yes, fully. And all you did was repeat my own argument back to me as if you hadn’t read what I wrote and somehow thought it supported a different claim. Phelps won because he didn’t violate the imminent lawless action standard. The hatefulness of his speech is completely irrelevant. No matter how hateful his speech is, or how non-hateful it is, the only thing that matters is whether it is intended and likely to incite a person or persons to break the law in the immediate future. Therefore, the hate speech is fully protected. It’s the provoking speech that isn’t. You are getting caught up on the fact that a single speech act can be both hate speech and a provoking action. But legally, those are separable elements. Thus why it is legally correct to say that hate speech is fully protected and that there is no gray area even if some acts of hate speech also turn out to violate the imminent lawless action standard. It is perhaps a subtle point, but it is a very important distinction.

jerv's avatar

@SavoirFaire I think we’re stuck on semantics then; specifically, having differing views on the precise definition of ”totally protected”.

SavoirFaire's avatar

@jerv You are stuck on semantics (again, something I already pointed out). I am explaining a legal distinction.

CWOTUS's avatar

If I understand Huckabee’s reasoning, though, @SavoirFaire, he’s saying that “the law” is the law of the land, not what the Supreme Court decides. So in a very technical sense, since Congress (and state legislators) make law, and not our courts, unless the Fugitive Slave Law is specifically stricken from the books – as I’m sure you would agree with me that it absolutely should be! – that is still “the law”. (I do not pretend to understand all of the legal nuances about the Dred Scott decision and the aspects of the FSL that could have determined that “a black man can never be a citizen of the United States”, but if the law says that, and if the law has never been stricken from the books or specifically overturned, then one could surely make the case that it IS “the law of the land”.) Legislatures make law; it should be up to them to un-make and specifically declaim bad laws when that is required. We take that kind of care when amending our various constitutions, both federal and state, and specifically change the words that make up the constitutions. If the Fugitive Slave Law has not been specifically and clearly obviated – by more than just Constitutional Amendments that effectively nullify it, then it still is – technically – “the law”.

Even the blog you cited, which is pretty much as well-written as anything on the Web is these days, got it wrong when they said “Dred Scott was overturned by the Citizenship Clause of the 14th Amendment, which was ratified in 1868.” No, Dred Scott was a man; perhaps the Fugitive Slave Law was “overturned”, but unless it was then also written out of the law, then Huckabee’s claim, outrageous as it may seem on its face, seems valid to me.

jerv's avatar

@SavoirFaire The difference between “semantics” and “legal distinction” is the pay scale; unless you’re getting $150–500/hr posting here, it’s semantics.

SavoirFaire's avatar

@CWOTUS That is not Huckabee’s reasoning. Indeed, it could not be his reasoning because what he said was that Dred Scott—a decision made by the Supreme Court—is the law of the land. And even if it were his reasoning, he’d still be wrong. The Fugitive Slave Act has been stricken from the law in multiple ways—including the Confiscation Act of 1862 (a Civil War bill that forbid US forces from returning escaped slaves to their former masters) and the Thirteenth Amendment to the United States Constitution (which was passed by Congress and nullified Article IV, Section 2 of the US Constitution along with all laws pertaining to the positive enforcement of it—nullification by amendment being, according to the US Constitution itself, a way of striking something from the law).

As for the “blog” I cited (which is from the widely regarded non-partisan newspaper The Hill, and is called a blog only because it does not update on the normal newspaper schedule), Supreme Court cases are frequently referred to in abbreviated forms. We say “Roe” or “Roe v. Wade” instead of “Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County.” We say “Obergefell” or “Obergefell v. Hodges” instead of “James Obergefell, et al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et al.” And we say “Dred Scott” (and, on occasion, “Dred Scott v. Sandford”) instead of “Dred Scott v. John F. A. Sandford.” I expect @jerv to need educating about basic conventions of language, but not you.

And to think I thought it would be obvious that the Huckabee comment was just a joke. Ah, well. Everything gets taken seriously during the election cycle, I guess.

@jerv Your problem is that you think this is a debate. It is not. I am educating you about something that you are simply wrong about. And no, the difference between “semantics” and “legal distinction” is not the pay scale. Even in a legal discussion that takes place outside of the court, making a claim about the legal system requires one to adopt the language of the system you are describing. Let’s take a very closely related case: logic. Here again, language is of the utmost importance. But even though we are not in a logic class, it would be both correct and proper to point out someone’s misuse or misunderstand of, say, an argument form like modus ponens. “Semantics,” in the dismissive sense, applies only when two people are saying the same thing in different terms with no further consequence than misunderstanding. Failing to understand a legal distinction, however, has consequences beyond this. If you doubt it, try making your argument in a court when conviction is on the line. Something tells me you wouldn’t try it.

jerv's avatar

@SavoirFaire I’m no longer entertained by this diversion, so I won’t see any replies here. Until we meet again…

CWOTUS's avatar

Okay. More jokes are lost on me during election cycles than at any other time, since I specifically tune out most election rhetoric, including all campaign speeches. Maybe it would have made more sense had I actually listened to (or read) anything that Huckabee ever said or wrote. With election cycles getting longer and longer there is so much less for me to pay attention to. In time I suppose I will be focused solely upon more and more ancient history.

rojo's avatar

Sedition, like beauty, is in the eye of the beholder so rather than a line to be crossed it is more like a wasteland of rumor, allegations, suspicion and innuendo.

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