The First Amendment: Where it is Implicated, and Where it is Not

[CousinIT]

https://www.jdsupra.com/legalnews/the-first-amendment-where-it-is-3482126/

Executive Summary: In the wake of the January 6, 2021, unrest at the United States Capitol Building and several social media outlets suspending President Trump’s accounts, free speech is a hot topic. Although the right to free speech is ingrained into American life, free speech is not absolute. The Constitutional right to free speech is not implicated by the actions of these private social media platforms because they are private entities, not arms of the government. Moreover, the First Amendment does not protect certain speech intended to incite or produce violence and lawless action.

To be sure, free speech is an immutable right protected by the First Amendment, which provides that “Congress shall make no law…abridging the freedom of speech….” But the right to free speech ends where it begins: with the plain language of the Constitution which guarantees it. The First Amendment only prohibits Congress – the legislative branch of the United States government – from abridging the right to free speech. This prohibition has since been made applicable to state and local governments through the Fourteenth Amendment, and generally prohibits government interference with free speech rights.

The First Amendment does not prohibit private individuals, companies and employers from restricting speech. The social media platforms responsible for suspending President Trump’s accounts are privately owned and operated, and they are free to limit the content on their sites without implicating the First Amendment. Thus, the First Amendment is not implicated in the decisions made by private social media platforms to suspend President Trump’s accounts.

Moreover, while the First Amendment prohibits government interference with speech that could be deemed hateful, it does not protect illegal and riot-inducing speech. As Justice Wendell Holmes, Jr. stated more than century ago, “[t]he most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” Thus, in Brandenburg v. Ohio, the U.S. Supreme Court held that First Amendment protections do not apply to speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

[Bernardo de La Paz]

1. People have right to express themselves, but no right to break other laws in the process. . . nt

[mahatmakanejeeves]

2. Not Schenck again.

Shouting fire in a crowded theater

The remark came from a decision that justified putting people opposed to the draft in prison.

Schenck v. United States

Schenck v. United States, 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Holmes Jr., concluded that defendants who distributed flyers to draft-age men urging resistance to induction could be convicted of an attempt to obstruct the draft, a criminal offense.

{snip}

In 1969, Schenck was largely overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).

{snip}

There are a lot of people in the replies to this tweet who are shouting fire in a crowded theater…

So here’s a thread on “shouting fire in a crowded theater”

1/11

Link to tweet

[Hermit-The-Prog]

3. Was unable to load the thread via threadreaderapp

[mahatmakanejeeves]

4. I don't know how that works. I'm not much of a computer person.

I appreciate your previous efforts to unroll threads.

Thanks.

[Hermit-The-Prog]

5. It could be Egoloon's meddling with stuff somehow

Usually, all it takes for threadreaderapp.com to work is to feed that status number of the tweet into the url. For example:

Using a tweet address of
twitter.com/WhiteHouse/status/1562916200866267138

https://threadreaderapp.com/thread/1562916200866267138

For the 1st amdendment thread
twitter.com/USConst_Amend_I/status/1419835352445972481

it goes to
https://threadreaderapp.com/thread/1419835352445972481/error

[mahatmakanejeeves]

6. I didn't know that's how it was done. Thanks for that. NT

[Hermit-The-Prog]

7. Welcome. :) NT

[crickets]

8. K&R for visibility.