Stands to reason.
So what is the relationship here to some Australian Mullah's
'incendiary' speech? Does it meet the Oliver Wendell Holmes' test of
illegal act? What was incendiary?
At 3:57 PM -0700 9/4/05, [EMAIL PROTECTED] wrote:
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One's basic premise of understanding in regard to free speech rights, would perhaps be clear if one reads the following paragraphs:
"Holmes' famous standard of protected speech involved two tests: proximity and degree. In other words, the crucial consideration for speech that promoted an illegal act was how likely that speech was to foment that act. That's why your ability to say, "I'm so mad at my wife I could just kill her" is protected by the First Amendment, but your ability to say, "If I gave you $10,000, would you kill my wife for me" is not. The former statement fails in degree. It is unlikely to elicit an illegal act. The latter succeeds in degree, however. It is likely to elicit an illegal act. (Parenthetically if you asked your cat or your dog to kill your wife or asked me to do it in Japanese, your speech would be protected because it fails on proximity. Since we couldn't understand you, we'd be unlikely to commit the illegal act you advocate.)
Prosecuting Robertson's speech is prevented for the same reason. Prosecution could succeed on proximity (the people who could commit the illegality he espoused could certainly have been influence by his assertion), but it would fail on degree. The likelihood of the Bush Administration being influenced to the extent that a public offical would be induced to violate the law is highly improbable. It's possible, but not to a degree sufficient to prove causation. Let's say, just for the sake of rgument, that Robertson had advocated selling plutonium to al-Qaeda. Same likelihood; same result: free speech.
The same principle applies to threatening the President, for example. Illegal speech must present, in the words of Justice Holmes,
"a clear and present danger that [it] will bring about the substantive evils that Congress has a right to prevent."
Therefore, your denigration of President Bush as a "lying, murderous son of a b***h" is protected by the First Amendment. It doesn't create a clear and present danger that you're going to kill him. On the other hand, if you go on TV and say, "I think we should assassinate that lying, murderous son of a b***h", you're going to find yourself in a whole lot of trouble with some people who have shiny badges and big guns. Your words have created a credible threat on the life of the President, which is a clear and present danger that Congress has a right to prevent."
KJD.
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