https://asiatimes.com/author/spengler/
“Thane Rosenbaum, a distinguished law professor and prolific writer, proposes to set limits to free speech in order to protect it. The matter is a minefield, and he wades into it fearlessly. But I am not convinced that he has found a solution.”
Saving Free Speech From Itself, by Thane Rosenbaum. Fig Tree Books; 305 pages, Hardbound. US$24.95
With some trepidation and the dissent of men like James Madison and Alexander Hamilton, the founders of the United States included in its Constitution a guarantee of free speech unlike any other in the world. The First Amendment bars restrictions on public expression. That does not include speech or writing that amounts to an act of violence.
Justice Oliver Wendell Holmes set the standard for prohibited speech with the celebrated dictum that one does not have the right to shout “fire” in a crowded theater. The case in question was Schenck vs. United States, in which the court ruled that a defendant did not have the right to oppose mandatory conscription during the First World War. That shows how difficult it is to define violent speech: By today’s standards, verbal opposition to a government’s policy in wartime surely would be protected.
For the past 80 years, the Supreme Court’s ruling in Chaplinsky vs. New Hampshire has defined prohibited speech as “the lewd and obscene, the profane, the libelous and the insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”