“What strikes me as being so wrong about this statute is that there’s no requirement that there be any kind of agreement between the person furnishing the information and the listeners, either explicit or implicit,” says Singleton. As such, he sees it as protected speech. In his view, it fails the historic test for incitement, which requires intent, and/or imminent action.
There are only three exceptions to free speech, as carved out by the Supreme Court: one) “fighting words” – the direct incitement to violence; two) obscenity; and three) the exception for “clear and present danger.” Ben Rosenfeld, in his essay on Coronado’s case, feels none of these applies to this speech. In the case of “clear and present danger,” for instance, he notes that Supreme Court Judge William Brandeis wrote: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” In other words, if someone has time to think about the crime, the speech describing it does not represent a clear and present danger.
“[This is] really asking the court to outlaw a type of speech that has never been outlawed before,” says Singleton. He filed a motion to throw out the Feinstein law as unconstitutional, but the judge declined earlier this year. “All the case law talks about is an individual having criminal liability for aiding and abetting in the commission of another substantive crime. Or if you are inciting violence to such a degree – crying ‘fire’ in a crowded theater – that harm is imminent. That’s the Brandenburg test,” Singleton adds.
If this statute stands, however, the government is saying the standards established by the 1969 Supreme Court case, Brandenburg v. Ohio, are outflanked; no imminent crime is needed anymore. In fact, as in Coronado’s case, no substantive crime need ever occur. It is, literally, a speech crime.
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