Michael R. Masinter
Wed, 03 Feb 2010 11:16:44 -0800
My students asked a related question concerning the medium of expression for fighting words. Assuming fighting words still constitute a category of unprotected speech, conventional understanding requires that they be uttered face to face since the rationale for excluding them from protected speech is the likelihood that they will trigger an immediate emotion driven violent response. Under that rationale, it makes no sense to treat traditional written communications as fighting words; reason has plenty of time to prevail over emotion before the reader responds with violence. But how should fighting words doctrine treat IMs sent to a person with a laptop sitting in the adjacent seat in class? And how about the student who is two seats away, or perhaps in the next row, or across the aisle? Can written text be fighting words when the writer is within reach of the reader when the reader first sees them?
Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu 954.262.3835 (fax) Quoting "Volokh, Eugene" <vol...@law.ucla.edu>:
I'd think that if the message is intended to spur imminent lawless action -- say, a tweet to a dispersed group of protesters urging them to start throwing rocks at police -- and is likely to spur such action, it would be unprotected under Brandenburg. Twittering is really no different here from in-person speech of the classic speech-in-front-of-the-corn-dealer's-home variety. Nor is it necessary that imminent lawless action actually occur, so long as it was intended and likely.Eugene-----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof- boun...@lists.ucla.edu] On Behalf Of Silverburg, Sanford R Sent: Wednesday, February 03, 2010 8:59 AM To: conlawprof@lists.ucla.edu Subject: Imminence and TextingA question arose today in my Con Law class while discussing Brandenburg, albeithypothetical. Texting and twittering allows for immediate receipt of acommunication via electronic means and can easily include apparent intent and specificity. There is less of a problem in determining the receiver of the message than accurately identifying the sender. Nevertheless, 1) if the message delivered does immediately result in the lawless action advocated, and 2) the sender of themessage can be identified, would his/her speech be protected under Brandenburg? Sanford Silverburg Sanford R. Silverburg, Ph.D Professor Department of History and Politics Catawba College Salisbury, NC 28144 US ssil...@catawba.edu _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprofPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people canread the Web archives; and list members can (rightly or wrongly) forward the messages to others._______________________________________________ To post, send message to Conlawprof@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprofPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.