Silverburg, Sanford R
Thu, 04 Feb 2010 17:28:36 -0800
I would like to add a wrinkle to the issue of imminence: Does the manner of communication have any relevance? In other words (unintended humor), must the deliverer of the message be physically present and proximate to the hearer? Sanford Silverburg Sanford R. Silverburg, Ph.D
Professor
Department of History and Politics
Catawba College
Salisbury, NC 28144
US
ssil...@catawba.edu
----- Original Message -----
From: conlawprof-requ...@lists.ucla.edu
Sent: Thu, 2/4/2010 3:00pm
To: conlawprof@lists.ucla.edu
Subject: Conlawprof Digest, Vol 76, Issue 4
Send Conlawprof mailing list submissions to
conlawprof@lists.ucla.edu
To subscribe or unsubscribe via the World Wide Web, visit
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
or, via email, send a message with subject or body 'help' to
conlawprof-requ...@lists.ucla.edu
You can reach the person managing the list at
conlawprof-ow...@lists.ucla.edu
When replying, please edit your Subject line so it is more specific
than "Re: Contents of Conlawprof digest..."
To post, send message to Conlawprof@lists.ucla.edu
To unsubscribe or change options, go to
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.
Today's Topics:
1. RE: Imminence and Texting (Volokh, Eugene)
2. RE: Imminence and Texting (Scarberry, Mark)
3. RE: Imminence and Texting (Michael R. Masinter)
----------------------------------------------------------------------
Message: 1
Date: Wed, 3 Feb 2010 15:54:50 -0800
From: "Volokh, Eugene" <vol...@law.ucla.edu>
To: "'conlawprof@lists.ucla.edu'" <conlawprof@lists.ucla.edu>
Subject: RE: Imminence and Texting
Message-ID:
<e7aaec684f9e3641b8cfc2b9a0bd965ac22ac66...@uclawe2k7.lawnet.lcl>
Content-Type: text/plain; charset="us-ascii"
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.
>
------------------------------
Message: 2
Date: Wed, 3 Feb 2010 17:35:28 -0800
From: "Scarberry, Mark" <mark.scarbe...@pepperdine.edu>
To: <conlawprof@lists.ucla.edu>
Subject: RE: Imminence and Texting
Message-ID:
<eb2efebe8e9c774ca4c4832b2c6ce15705c7f...@lime.pepperdine.ad.pepperdine.edu>
Content-Type: text/plain; charset="US-ASCII"
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.
------------------------------
Message: 3
Date: Wed, 03 Feb 2010 22:00:54 -0500
From: "Michael R. Masinter" <masin...@nova.edu>
To: conlawprof@lists.ucla.edu
Subject: RE: Imminence and Texting
Message-ID: <20100203220054.m6bg3en3wcko8...@mail.acast.nova.edu>
Content-Type: text/plain; charset=ISO-8859-1; DelSp=Yes; format=flowed
During class discussion students made both Mark's and Eugene's
arguments. Another student suggested that differences in how we
process speech and text may mediate the emotional response to each,
making violence a less likely response to text than to speech and
therefore offering less justification for treating insulting text as
fighting words. Even if that were true, there is nothing in first
amendment cases suggesting such a speech / text distinction, so I
think Eugene's answer likely correct. Given the improbability of a
case ever arising, I imagine the question will remain confined to
class and list discussion.
Mike
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 "Scarberry, Mark" <mark.scarbe...@pepperdine.edu>:
> 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.
>
End of Conlawprof Digest, Vol 76, Issue 4
*****************************************
_______________________________________________
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.