Volokh, Eugene
Wed, 03 Feb 2010 15:56:24 -0800
Seems to me it would be, just as handing an insulting note to someone (in a context where he'd be expected to read it right away) might constitute fighting words, no?
> -----Original Message----- > From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof- > boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter > Sent: Wednesday, February 03, 2010 11:15 AM > To: conlawprof@lists.ucla.edu > Subject: RE: Imminence and Texting > > I agree with Eugene that the electronic speech that was intended to > and was likely to incite a smash mob is unprotected speech. > > 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 Texting > >> > >> A question arose today in my Con Law class while discussing > >> Brandenburg, albeit > >> hypothetical. Texting and twittering allows for immediate receipt of a > >> communication 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 the > >> message 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/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. > >> > > > > _______________________________________________ > > 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. > > > > > > _______________________________________________ > 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. > _______________________________________________ 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.