Hacker News new | ask | show | jobs
by jack_h 293 days ago
The standard as decided in Brandenburg v. Ohio is "imminent lawless action". You're correct that context matters; the speech must be tied to an imminent violation of law. This is a very high bar and in practice is very hard to reach.
1 comments
dmix 293 days ago
Yes the US laws aren't prosecuting speech in isolation, it's always involves some sort of IRL plan to do something illegal. Just like criminal conspiracy laws, they aren't just about telling someone you plan to commit a crime but actually taking earnest steps towards a crime with another party.
link
mothballed 293 days ago
IIRC the "I eat ass" bumper sticker guy lost his attempt to sue the police because judges ruled obscenity is an exception to the 1A.[]

Other examples include "appeal to prurient interest" even when the "interesting" activity is not illegal.

[] https://storage.courtlistener.com/recap/gov.uscourts.flmd.36...

link
hiatus 293 days ago
It looks like the guy lost at the summary judgement phase because of qualified immunity. The case you cite doesn't appear to make your point.
link
mothballed 293 days ago
If police have QI to stop your speech with impunity, and actually do so, that is just regulating that speech with extra steps.

>The case you cite doesn't appear to make your point.

It does if you go on and read the judgement, which cites that that it is reasonable to initiate a stop for obscenity, which was part of the reasoning used to grant QI.

link
lcnPylGDnU4H9OF 293 days ago
> It does if you go on and read the judgement ...

I think this is beside their point. Police are practically given qualified immunity by default; the case isn't strictly "lost" at this stage, it's lost if that decision is appealed and upheld until the victim is out of appeal options.

To your point, the summary judgement is still a clear injustice and it does practically give police the ability to stop speech whenever they want. But there's an element of random punishment if the person they stop has the resources to appeal the first decision. I'd be surprised if that appeal would be lost in this case given the main problem was the content of the expression; that's a pretty cut-and-dry 1a violation.

(It's a separate issue but there's another problem with the cases in which the officer loses qualified immunity in that the city they work in (tax payers) will pay the damages to shield them from consequences. I forget the legal mechanism but it pretty much always happens.)

link