Robert Sheridan
Thu, 04 Feb 2010 18:36:52 -0800
At some point the question in the assembled-crowd situation is whether the police lieutenant surrounded by a troop of Tac-squad officers in helmet, face-guard, body armor and wielding batons (this is San Francisco where I"m thinking anti-Vietnam War demonstrations and student demonstrations at S.F. State, shutting down the school over the lack of ethnic studies courses back in the day), is justified in reaching for the bullhorn to tell the crowd to disperse because it is becoming a riot, i.e. reading the Riot Act, otherwise measures will be taken.
That's how it often worked in practice and perhaps will again.One point of interest in the C.U. decision that struck me as new was an addition to an FA toolkit which already contains such graphic doctrines as Narrow-Tailoring, Vagueness and Substantial Overbreadth, and that is the Doctrine of Prolixity. Did you know before C.U. that we had a doctrine of prolixity or that it meant needing to see a lawyer? As though a lawyer would be very helpful in the Prolixity Arena?
The definition of which particular speech was outlawed under BCRA struck AKM and four others as being so complicated (i.e. "prolix") that anyone wanting to speak required a lawyer, perhaps a team of lawyers, perhaps this whole list of participants, at some expense, to advise before deciding whether the speaker is too close to the edge of the thin ice. Perhaps FA-law itself is too prolix, seeing as how even Conlawprofs disagree as to what can be said and what can't, not to mention The Nine Seers. Perhaps FA-law has admitted defeat with the adoption of the Prolixity Doctrine. Too many words!
We might have to start all over again, from scratch.
We've done ourselves in. I might be wrong, however... rs Silverburg, Sanford R wrote:
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.DProfessorDepartment of History and PoliticsCatawba CollegeSalisbury, NC 28144USssil...@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>:------------------------------ 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?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_______________________________________________ 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.-----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.-----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 prevailover emotion before the reader responds with violence. But how shouldfighting 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>:lawlessI'd think that if the message is intended to spur imminentaction -- say, a tweet to a dispersed group of protesters urging them to start throwing rocks at police -- and is likely to spur suchaction, 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 itwas 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 messagedelivered 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 thatprivate.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 asAnyone 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 LawEnd of Conlawprof Digest, Vol 76, Issue 4 ***************************************** _______________________________________________-----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 TextingSeems 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?lawlessMichael 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 imminentprivate.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 asAnyone 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.