[cameldrv]

The issue is that in rem jurisdiction was originally intended and justified for cases where the owner of the property was unknown or beyond the reach of the law (say overseas.) The early cases were things like an overseas shipper not paying proper import taxes. For cases like this, in rem seems reasonable to me.

Where things went off the rails is when they started applying this to cases where the owner of the property was known, and that owner should have their normal fourth amendment rights.

[r3trohack3r]

You give the government an inch and, historically over and over again, they take a mile.

The Presidential Surveillance Program was justified using Smith v. Maryland. The argument was that, if Smith had no reasonable expectation of privacy for metadata in isolation, no aggregate of citizens had an expectation of privacy. Therefore mass surveillance of metadata is legal. You let the government see the phone records of one citizen without a warrant and decades later you have something like 33% of all email, TCP/IP, and phone metadata being collected and analyzed by a government agency without a warrant.

The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets. You let the government regulate speech that poses a clear and present danger and they use that to make it illegal to oppose a draft.

[arcticbull]

> The old saying that the 1st Amendment doesn’t apply to “yelling fire in a crowded theater” was an argument a Supreme Court justice used to justify jailing a man for handing out anti-draft pamphlets.

This whole 'you can't yell fire in a crowded theater' thing is not a real thing.

Per @popehat:

5/ '"shout fire in a theater" is a rhetorical device used in 1919 to justify jailing people for writing anti-draft pamphlets in World War I. The First Amendment standard (to use the term generously) applied in that case has been dead for more than a half-century.'

6/ 'The same judge went on to smirk "three generations of imbeciles are enough" to justify forcible government sterilization of persons deemed undesirable by the state, so you know, he had a way with words.'

7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]

[1] https://twitter.com/Popehat/status/1356670918706089985

[8note]

There's no modern attachment to eugenics or the draft though. A person full of bad ideas can still have a good one, and it's noticeable that his others do not persist

[vkou]

> 7/ 'So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.' [1]

That's true, but it's also true to criticize anyone citing the constitution by pointing out that it was written by slaveowners and perpetrators of genocide.

For some reason, though, that argument never goes over well. Maybe it's because the character of the person who made an argument hundreds of years ago is only relevant when you disagree with the argument.