Lilalovecat
Ken WhiteI was procrastinating from making pie and so I wrote a post: why the observation “well, there are exceptions to the First Amendment” is not particularly helpful.
https://popehat.substack.com/p/the-first-amendment-isnt-absolute
Yes, I am aware that normal people procrastinate from writing about law by making pies and not the other way around.
Andrew LeCody@Popehat Has anyone ever accused you of being normal?
Trick Jarrett@Popehat
I don't believe many of us were under the belief you were normal
I don't believe many of us were under the belief you were normal
JayTea@Popehat Probably just a puff piece anyway.
@Popehat
It's only my opinion, but I have EARNED an 8 year criminal, civil, tax, Constitutional... law degree from reading and watching the news. Thank You F.G. for your TREMENDOUS education plan.
It's only my opinion, but I have EARNED an 8 year criminal, civil, tax, Constitutional... law degree from reading and watching the news. Thank You F.G. for your TREMENDOUS education plan.
Ashton
Steve Syfuhs@Popehat if you need more things to do, I think we'd all like to hear the story of Carlos.
Mack ⚡️
David Kluft@Popehat I drafted a ten-count petition today but never got around to the kugel i promised, so yeah.
SupposeNot@Popehat that article made perfect sense to me until I remembered the current Supreme Court basically said “settled law doesn’t mean shit if we don’t like it” when they overturned RvW with the Dobbs decision in what I’ve been informed (not being a lawyer myself) was a horseshit legal argument.
So why trust the current court to not create new categories of speech that can be restricted as long as it is likely to injure the right people, and not the wrong ones (in their view)?
Rufus J. Cooter@Supposenot @Popehat
Yep - agree with this. I think that Ken is absolutely correct about the state of play up until Kav & ACB got confirmed; now, though, I think the Roberts court has made it clear that the constitution says whatever they say it says, and they don't give the tiniest fraction of a fuck about your precious little "precedents".
Which is what some folks have long wanted, and I'm sure they will never regret, as the court is a static institution, not subject to change.
Lou Z.@Popehat thats why we follow you....who wants normal?
Dirk Hohndel@Popehat
that’s the opposite direction that procrastination in most people takes 😂
that’s the opposite direction that procrastination in most people takes 😂
Anathema Device@Popehat Merry Xmas Eve, Ken, and I will read your post with all the knowledge and attention it deserves after I have another cup of tea :)
Hammancheez@Popehat I am puzzled that speech (content containing) animal abuse (which is a crime) didn’t pass muster as speech integral to crime thoug. not personally arguing it’s necessarily on the same moral level as CSAM but for many citizens it might feel close to.
Josh@Popehat So here's my question about that. 30 years ago, if you went to your local bar and said "somebody should kill this politician/journalist/whatever I don't like", that's not incitement because you're talking to like five people and none of them are likely to take you seriously.
But what if you say the same thing to your 10 million social media followers, many of whom are very likely mentally unstable and own many guns? Could that not, then, be incitement?
i.e. "Stochastic Terrorism"
Busy Bee@Popehat I can't say I've done anything so productive as writing about law, but I, too, feel like procrastinating making pie. I'm just not feeling it this year. Somehow, something with three ingredients seems like too much effort.
BigglesHow does "the court has decided 8-1 that these restrictions are the only ones to apply" fit with their recent reversal of roe v wade? Was that just a rogue court - and if so, how do we deal with that - or does it imply these sorts of things can and do change?
I'm a bit uncomfortable with "the court has a settled precedent" types of arguments, when occasionally they ignore it.
@Biggles It took 50 years of steady progress (or regress) to overturn Roe, which was 7-2.
good enough. Thank you.
@Biggles The point is that the law can change but it changes over somewhat predictable channels.
Martijn Vos@Popehat @Biggles In the case of Roe v Wade, I think it was overturned mostly because of a strong political push to do so. The political party that appointed most of those judges had as an explicit campaign point that they wanted it overturned.
So if one party wants to ban a specific kind of speech and manages to appoint the necessary judges to do so, I see no reason why it wouldn't happen. Of course the court needs some legal justification, but if it's speech that can be shown to hurt people or lead to crimes, I don't think that's going to be much of an obstacle.
So if one party wants to ban a specific kind of speech and manages to appoint the necessary judges to do so, I see no reason why it wouldn't happen. Of course the court needs some legal justification, but if it's speech that can be shown to hurt people or lead to crimes, I don't think that's going to be much of an obstacle.
Pyperkub@Popehat - this is a good base for a "crusty " crust?
Mike Vincent@Popehat an evergreen statement - “well what if we had a completely different legal system?”
Rich Puchalsky 
OK, I read this, and my question is: what about the historical exceptions? For my interests, this comes down to mostly the first WW imprisonments of socialists advocating resistance to the draft, Eugene Debs in jail, etc. Since the Supreme Court back then had no problem with this, how can the Supreme Court be said to have a consistent view of what these exceptions are?
Nolan Miller@Popehat “some felidae are Bengal tigers, so it’s perfectly plausible that the felidae shoving its ass in my face and demanding to be fed is a Bengal tiger. Can you show me a published opinion specifically saying this isn’t a Bengal tiger?” Brilliant, maybe only to cat owners, but brilliant all the same.
William B. Turner@Popehat. Sure, if you commit a crime.
Great article, and I know I'm not a lawyer, but didn't you miss one exception in your short, exhaustive list of exceptions? Blackmail. I think that's illegal. I think it's illegal even if none of the individual parts of it are illegal. For example, it may be perfectly legal for me to expose some embarrassing information about you (if it's true, otherwise it would be defamation), and it's perfectly legal for you to give me money, but if I promise not to expose that information if you give me money, suddenly it's blackmail and illegal. Right?
Still a very well established exception, of course, but it looks like it's not that easy to make an exhaustive list of exceptions.
In any case, I don't think "hate speech that's likely to get people killed" and "medical misinformation that's likely to get people killed" are plausible candidates for an exception. These can be vague, but the same thing is true for threats. And while I'm not a lawyer, it seems to me that public verbal attacks on specific people or groups that are followed by deadly attacks on those people or groups (see some of the racist mass shootings) might even simply be considered incitement.
I think the internet age certainly justifies reassessing some of these edge cases.
Still a very well established exception, of course, but it looks like it's not that easy to make an exhaustive list of exceptions.
In any case, I don't think "hate speech that's likely to get people killed" and "medical misinformation that's likely to get people killed" are plausible candidates for an exception. These can be vague, but the same thing is true for threats. And while I'm not a lawyer, it seems to me that public verbal attacks on specific people or groups that are followed by deadly attacks on those people or groups (see some of the racist mass shootings) might even simply be considered incitement.
I think the internet age certainly justifies reassessing some of these edge cases.
@Popehat
I find three interesting topics to address in the essay: child pornography and animal cruelty, and incitement.
The essay says that child pornography is an exception to First Amendment free speech because child sexual abuse is necessary to create it. Doesn't that mean that a painter or animator could produce legal, protected child porn, as long as it was solely the product of a twisted imagination?
/1
@Popehat
I find three interesting topics to address in the essay: child pornography and animal cruelty, and incitement.
The essay says that depictions of animal cruelty are protected. But if a jurisdiction has a law against animal cruelty, defined in a way that passes legal muster, would that make depictions of animal cruelty produced by recording acts of animal cruelty unprotected (unless done to expose animal cruelty perpetrated by others)?
/2
@Popehat
I find three interesting topics to address in the essay: child pornography and animal cruelty, and incitement. (I repeated this paragraph in case people don't click through the content warning.)
In the case of incitement, we have a case of a speech to the effect of, "Let's go fight like hell or we won't have a country, but be peaceful", addressed to a belligerent crowd.
/3
@Popehat
My understanding is that juries decide the facts of cases, and appeals courts generally can't overrule a jury on findings of facts, only matters of due process, legality of applicable law, and so forth.
If a jury finds that the "but be peaceful" was intended to dodge responsibility for foreseeable violence, as opposed to being a since appeal for peaceful "fighting like hell", is that a finding of fact that would be outside the reach of appeals?
/4
@Popehat
Does this question make you more interested in working on a pie?
Does this question make you more interested in working on a pie?
@Popehat My Substack subscriptions are multiplying. Thanks!
Kayna (Lauren_Wu)@Popehat Thank you for this great read. I wish more people understood this.
Ubi Consistam?@Popehat Thanks!
(Why couldn't depictions of animal cruelty be integral to the crime of animal cruelty?)