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by drewcoo 1455 days ago
The question is not "how is something someone said considered free speech?"

The default is that what's said is protected.

The question should be "why is this speech not protected?" Does it incite violence if no violence occurred? Was it some kind of targeted threat or just impotent rage?
1 comments
kube-system 1455 days ago
SCOTUS has outlined tests to determine whether speech is protected or not. These don't necessarily require violence to actually taken place as a result.

https://en.wikipedia.org/wiki/Imminent_lawless_action

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pokeymcsnatch 1455 days ago
> Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely

This very obviously doesn't apply in this case.

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kube-system 1455 days ago
It passes the imminence test which was further defined in Hess. It might fail the likelihood test, but of course, there was no legal action taken against this person so we're just making hypotheticals about what would happen if they did take legal action.

1A protects you from laws or actions that prohibit your speech, they don't protect you from people asking you not to engage in that speech.

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pokeymcsnatch 1455 days ago
It does protect you from the government asking you not to engage in speech. The fact that no legal action was taken is what makes this behavior blatantly unconstitutional. If it was against the law, DHS would have arrested her- instead they made vague threats about charging her under a law dealing with conspiring to murder federal law enforcement. Any government policy that creates a chilling effect on a protected right is unconstitutional, regardless of any charge or court case.
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kube-system 1455 days ago
LE can use discretion when investigating cases that they believe may break the law, and they can give people warnings.

As I understand, other SCOTUS rulings on chilling effects all pertain to political speech that were otherwise clearly and unquestionably legal.

I think we’d need to have more information about the process and procedure that took place here to determine whether this letter was sent in bad faith or not.

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