Scarberry, Mark
Wed, 03 Feb 2010 17:37:02 -0800
I agree with Eugene, except that sometimes what may make words "fighting" words is that they are heard by others. At least in terms of whether a statement is likely to provoke a violent reaction, handing someone a note using an expletive may be quite different from saying it to him loudly in front of friends and family. Text messages and folded notes may thus be less likely to constitute fighting words.
Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Wednesday, February 03, 2010 3:55 PM To: 'conlawprof@lists.ucla.edu' Subject: RE: Imminence and Texting 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. _______________________________________________ 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.