On Saturday, October 17, 2020, 02:38:15 AM PDT, Zenaan Harkness <[email protected]> wrote:
On Sat, Oct 17, 2020 at 07:53:13AM +0000, jim bell wrote: [snip] >> One lesson I learned was a Supreme Court case named Brandenburg v. Ohio >> (1969). https://www.law.cornell.edu/supremecourt/text/395/444> >> https://en.wikipedia.org/wiki/Brandenburg_v._Ohio> >>From that decision:> >> "Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. >> The Act punishes persons who 'advocate or teach the duty, necessity, or >> propriety' of violence 'as a means of accomplishing industrial or political >> reform'; or who publish or circulate or display any book or paper containing >> such advocacy; or who 'justify' the commission of violent acts 'with intent >> to exemplify, spread or advocate the propriety of the doctrines of criminal >> syndicalism'; or who 'voluntarily assemble' with a group formed 'to teach or >> advocate the doctrines of criminal syndicalism.' Neither the indictment nor >> the trial judge's instructions to the jury in any way refined the statute's >> bald definition of the crime in terms of mere advocacy not distinguished >> from incitement to imminent lawless action.3 " [end of quote]>> >> Did >> I: 'advocate or teach the duty, necessity, or propriety' of violence >> 'as a means of accomplishing industrial or political reform'; ? >By my reading, you are skirting the line. No, the line isn't 'skirted'. Okay, I will try to explain it more clearly. To a first approximation, the principle of Brandenburg v. Ohio (1969) is that the US Supreme Court decided that the First Amendment (free speech) protects advocacy of 'crime' and 'violence' EXCEPT in what I call a 'riot-type' situations. https://www.law.cornell.edu/supremecourt/text/395/444 and https://en.wikipedia.org/wiki/Brandenburg_v._Ohio "As we said in Noto v. United States, 367 U.S. 290, 297—298, 81 S.Ct. 1517, 1520—1521, 6 L.Ed.2d 836 (1961), 'the mere abstract teaching * * * of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.' See also Herndon v. Lowry, 301 U.S. 242, 259—261, 57 S.Ct. 732, 739—740, 81 L.Ed. 1066 (1937); Bond v. Floyd, 385 U.S. 116, 134, 87 S.Ct. 339, 348, 17 L.Ed.2d 235 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. Cf. Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957); De Jonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278 (1937); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). See also United Stats v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Baggett v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). " "Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who 'advocate or teach the duty, necessity, or propriety' of violence 'as a means of accomplishing industrial or political reform'; or who publish or circulate or display any book or paper containing such advocacy; or who 'justify' the commission of violent acts 'with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism'; or who 'voluntarily assemble' with a group formed 'to teach or advocate the doctrines of criminal syndicalism.' Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action. " [end of quote] See the wording, "imminent lawless action". A riot, for one example. In doing so, they overturned (or cast down on) a series of prior Supreme Court decisions which had allowed the criminalization of some types of speech. As the Wikipedia article states: "In the process, Whitney v. California (1927)[4] was explicitly overruled, and doubt was cast on Schenck v. United States (1919),[5] Abrams v. United States (1919),[6] Gitlow v. New York (1925),[7] and Dennis v. United States (1951).[8]" [end of quote] My own fanciful example: If a person speaks to an audience in an auditorium, he can advocate stealing books from a library. If he advocates such theft in front of an angry crowd which is armed with battering rams and pitchforks and torches in front of the public library, THAT is potentially still a crime. THAT is a riot-type situation. THAT speech, Brandenburg does NOT protect. I should repeat that this is "to a first approximation". In order to find out how the Brandenburg decision is being interpreted in YOUR Federal Appeals circuit, you should look for appeals cases in that circuit subsequent to the Brandenburg decision that include cites to the Brandenburg decision. This is a process that used to be called "Shepardization". "Shepardization" is a kind of old-style, manual indexing system which allows a legal researcher (one without a computer) to find all legal decisions (court cases) which contain a reference to another case. As you might expect, the placing of such legal records on computers has replaced "Shepardization", on the LEXIS law library computers that most Federal prison law libraries eventually have gotten installed. https://en.wikipedia.org/wiki/Shepard%27s_Citations Not only can you now search for a much larger number of things, today with computers you can search for any text-string you wish, or even combinations of text-strings that happen to be within any given number of characters that you desire, and actually far more than even this. (I once calculated that each typical book of Federal legal decisions (F.2d, F.3d, L.Ed.2, F.Supp, F.Supp2nd) has about 8,000,000 characters in it. A Federal law library would probably have about 3,000 such books in it, by my vague recollection. So, uncompressed, that's about 24 gigabytes: That seemed to be a huge amount of hard-disk storage when I began learning Federal law in December 2000, but today it's about 1/100 of a typical-sized hard disk.) It should go without saying that I intend to avoid all "riot-type" situations, and if caught in one, I certainly won't be doing advocacy! Jim Bell
