Free Speech Laws, Precedents & Scripture

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     This article was started by Dave Leach R-IA Bible Lover-musician-grandpa (talk) 20:53, 19 January 2021 (UTC)
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Federal Law

Rebellion and insurrection are not protected "free speech".

18 U.S. Code § 2383 - Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

18 U.S. Code § 2101 - Riots

(Summary: "intent" to "incite a riot" or “aid and abet any person in inciting or participating in or carrying out a riot” are federal crimes. Federal jurisdiction kicks in when such activity crosses state lines; either when the accused physically crosses state lines, or his communication by mail, phone, etc. does.)

Supreme Court Precedent

Brandenburg v. Ohio, 395 US 444 (1969) "Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Hess v. Indiana, 414 US 105 (1973). A university professor who said “We’ll take the f—ing street again” was acquitted because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time....since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’””

National Association for the Advancement of Colored People v. Claiborne Hardware Company, 458 US 886 (1982). "Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech."

[ Terminiello v. City of Chicago], 337 U.S. 1 (1949) "The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 260, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes.

"Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.[4]

". . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups."

FCC Rulings

FCC Website statement: "The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a "clear and present danger of serious, substantive evil" come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC. According to an FCC opinion on this subject, "the public interest is best served by permitting free expression of views." This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive." (But indecency may be limited to certain viewing times, and obscenity must not e allowed.)

Application: a National Review article points out that cable networks are not subject to the FCC. It responds to CNN commentator Max Boot who wants Biden to reinstate the Fairness Doctrine, and reminds us of who brought it to an end and why.

Application to Trump Impeachment

For perspectives, and quotes from President Trump's speech, see SelfRelianceCentral.