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Comment by oarabbus_ | Hacker News Reader

You make some great points. Let me also ask you a devil's advocate question.

"Let's go to oarabbus_'s house at <DOXXED ADDRESS> and kill him" is not protected speech, correct? I am sure everyone agrees upon this.

But "Let's attack folks who are <oarabbus_'s ethnicity> as they are a scourge upon our nation" is protected? Why?

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That is not protected speech. The 'attack' is the keyword. Therefore, supremacist groups typically say "<oarabbus_'s ethnicity> is destroying <oarabbus_'s country of residence>" which is legal. They're just connecting the dots the only way they know how.

Yes, it is. The nuance he was intentionally illustrating is the basis of our entire law. The one key exception to freedom of speech is speech that will, with high certainty, provoke "imminent lawless action."

And this is something that is interpreted in the most literal and conservative fashion possible. In his former statement he has a specific target, time, and location. It is extremely likely that his behavior will result in imminent unlawful action. By contrast condemning a large group lacks any specificity and is, in and of itself, not likely to suddenly drive any specific unlawful action.

Obviously the only relevant opinion is that of a judge, but... nope.

I would say 'Let's kill <ethnicity>' as a standalone statement is illegal in every western country.

Issues similar to this have been brought up in the courts many times, and they almost invariably (sexual obscenity is one exception) yield lopsided results in favor of the 'offender.' One random recent case is Elonis vs the United States [1]. Elonis made statements online suggesting a desire to kill his estranged wife, later on kindergarten children, and then after that an FBI agent that had visited him in relation to the threat against children.

He claimed it was art and he was only expressing himself and not attempting to threaten or intimidate the individuals/groups in question, even though he was aware they would likely interpret it as threats. This is really a million times more threatening that some vague expression against an ethnicity. The supreme court ruled 8-1 in his favor. The US Supreme Court is extremely supportive of free speech, including the most detestable.

As an aside the links on the scotusblog are extremely high quality and provide lots of plain language analysis of the technical points. A phenomenal resource for any case or issue you're ever interested in learning about the legal nuances behind. For instance this [2] is their coverage of the 'gay cake' case.

[1] - https://www.scotusblog.com/case-files/cases/elonis-v-united-...

[2] - https://www.scotusblog.com/case-files/cases/masterpiece-cake...

> He claimed it was art and he was only expressing himself and not attempting to threaten or intimidate the individuals/groups in question, even though he was aware they would likely interpret it as threats. This is really a million times more threatening that some vague expression against an ethnicity. The supreme court ruled 8-1 in his favor. The US Supreme Court is extremely supportive of free speech, including the most detestable.

In this context it was not indeed a standalone statement.

from the wikipedia page indeed his statements are quite general and in a sense artistic. He did not argue for killing his ex-wife, there is no reading where he could encourage others to kill his ex-wife.

He really had a wish for it and was talking about it.

From what is reported in the wikipedia article even something like "I think it is a good idea to kill my ex-wife" would have been too much.

In America, it’s protected.

the "Let's" part is literally an encouragement. Surely it can be made legal (e.g. by obvious irony). In a case like Elonis v. United States the defense was that the statements where more of "I have a wish to kill X" instead of "I/you/we/they should kill X".

I’m sure you can come up with some situation where it’s not protected.

“Let’s attack” is generally the indicator here, and where we draw the line both morally and functionally. For example - there’s been very few partisan attacks on democrats despite the absolutely virulent “they’re destroying the country” speech from every conservative news sphere (and vice versa). Pundits have learned to walk that line because that has been the line that actual violence starts. 8chan has no filter or moderation on that. We see the results.

Not a lawyer. But I don’t think it’s protected when it’s said with such specificity. “I hate ethnicity <X>” is probably protected.

Not a lawyer either, but it's formally called The Brandenburg Test:

https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

"The Court held that government cannot punish inflammatory speech unless that speech is 'directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'"

One would want strong evidence for such a likelihood, of course. Evidence such as, for example, it having already done so three times before.

Steve Scalise's assassination was attempted by a radical anti-Trumper, Antifa has cracked open skills and sent people to the hospital. We have strong evidence that anti-Trump Facebook groups and subreddits cause real-world violence.

The exception in this standard is for "likely" and "imminent" violence. There are also exceptions for the commission of a crime, but then the crime has to be committed, and thus the intent.

Episode 8 of the "Make No Law" First Amendment podcast has an excellent explanation of the difference between the two. That episode is a Q&A and covers other great topics as well. The entire podcast is excellent if you want a good, baseline understand on the exceptions to US first amendment law and why/how they are so narrowly defined.

It's not: you are planning direct violence in a clear, present, and imminent context.

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