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Comment by omgwtfbyobbq | Hacker News Reader

It may be. The key is whether the misinformation present directed others to inciting or producing imminent lawless action and is likely to incite or produce such action, and I think it hinges on how people reacted to the misinformation.

CNN/MSNBC may also have misinformation, but their misinformation may not be in the same class, specifically something that could motivate some subset of their viewers to commit insurrection by attempting to detain and possibly murder elected representatives.

In either case, it'll be interesting to see where this goes.

Edited based on feedback.

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> To me, it could also be the modern day version of yelling "Fire!" in a crowded theater, and I think it hinges on how people reacted to the misinformation.

That legal argument has been overturned precisely because it has no real limiting principle: https://www.theatlantic.com/national/archive/2012/11/its-tim...

While it's not the best, people are familiar with it. The replacement is certainly more accurate.

In this case, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action?

"Incitement" and "imminent lawless action" are extremely narrow compared to what people are talking about here: https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

Even openly advocating violence is protected by the first amendment under the Supreme Court's Brandenburg decision.

They are narrowly interpreted as it relates to individuals, but I'm not sure that same interpretation would be applied to media outlets.

In terms of liability, as a property owner I have a much lower standards for care, custody, and control of an empty piece of property I have with a no trespassing sign than a corporation has for a sports stadium they run. I'm not certain that the standards for free speech by an individual in a single instance would be the same as the standards for a large media corporation across multiple instances.

How narrowly the court interprets "incitement" and "imminent lawless action" may be a function of the entity making them. An individual who is making political speech could say something that is considered protected, while a large corporation saying the same thing repeatedly, in a different context, may not be protected in the same way.

While the Supreme Court has not specifically ruled on incitement in the context of media outlets, it's clear from cases like New York Times v. Sullivan and Hustler Magazine v. Falwell that the Supreme Court is extremely protective of speech by media outlets.

They are, in civil cases involving defamation and parody. I don't think a case involving any of the media outlets who are spreading misinformation about the election that could be related to federal crimes would be based on either of those.

> In this case, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action?

We have several Supreme Court decisions that can help answer this question. First of all, misinformation was established to be protected speech in NYTimes vs Sullivan, where the SCOTUS unanimously found that the New York Times was within its rights to publish an advertisement containing factual inaccuracies[1].

Brandenburg v Ohio (also unanimous[2]) explicitly established the "imminent lawless action" test as overriding the "clear and present danger" test; which was further reinforced by Hess v Indiana in which the court found that Hess's words were protected by the First Amendment because his speech amounted to "nothing more than the advocacy of illegal action at some indefinite future time"; i.e. failing the "imminence" portion of the "imminent lawless action" test [3].

> While it's not the best, people are familiar with it. The replacement is certainly more accurate.

The entire point is that what people are familiar with is incorrect and should no longer be considered a valid argument. In fact, the irony of this logic is that one could argue that advocating for limiting speech by falsely citing an overturned precedent as currently relevant is itself misinformation that can be legally regulated even under the First Amendment; we would both agree that that is nonsense.

[1] https://en.wikipedia.org/wiki/New_York_Times_Co._v._Sullivan

[2] https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

[3] https://en.wikipedia.org/wiki/Hess_v._Indiana

We do, for individuals, in specific situations. Like I stated in my comment above, I'm not certain those would apply in this case.

The New York Times vs Sullivan precedent pretty specifically addressed that issue: organizations (like the NYT) are protected by the First Amendment.

Also, just taking a step back, the Constitution makes no mention of a difference between individuals and groups. If you and I were to group together to advocate for something, our rights to advocate for that thing don't magically disappear.

In fact, by this logic, we don't actually have a free press, because journalistic outlets aren't individuals, they are organizations that the Constitution doesn't protect.

The New York Times vs Sullivan precedent does, in terms of defamation. That may not apply in other situations, specifically in federal crimes.

The Constitution may not differentiate between individuals and other entities, but the courts have differentiated between them. They may not in this case, but I wouldn't assume they would either.

They also differentiate based on other facts, which may differentiate any future cases. We definitely have freedom of the press, as it relates to defamation, and parody, but the precedent established in those cases may not apply to a case involving criminal acts.

> The Constitution may not differentiate between individuals and other entities, but the courts have differentiated between them.

When? To my knowledge, there are no major landmark decisions which hold that an association of individuals may be treated differently from individuals; especially as it relates to the First Amendment. We even have a precedent in Citizens United v FEC which reinforces the consistency between individuals and organizations under First Amendment jurisprudence.

> We definitely have freedom of the press, as it relates to defamation, and parody, but the precedent established in those cases may not apply to a case involving criminal acts.

The established cases also include criminal acts, as was the case when the Ku Klux Klan advocated for (criminal) violence. The courts have held that even advocating for illegal acts at some time in the future is protected (Hess).

There's nothing I know of that applies to the First Amendment, but there are many examples where individuals and organizations, or even organizations in different levels of government, are held to different standards under the law. The standards for HOAs versus local government is a good example. Some states require that HOAs enforce code equally, but will permit local government to enforce it unequally because local government has relatively limited resources.

The court may consider a media corporation to be identical to an individual in terms of First Amendment cases, but I wouldn't be certain about that.

The established cases do include criminal acts, but those were challenged based on the unconstitutionality of state law, and were in different crcumstances. If DT were charged with inciting a riot by the District of Columbia, then Hess is great precedent, but I don't think it would be great in a government case against a media corporation. The government likely wouldn't bring criminal charges against a specific individual either, which changes things. If they seek monetary damages and an injunction, or even just an injunction, the precedent used in Hess may not apply.

> There's nothing I know of that applies to the First Amendment

Citizens United. It ruled that a law banning corporations (and other kinds of associations such as non-profits and labor unions) from making campaign contributions was an unconstitutional abrogation of their First Amendment rights.

When people fulminate against the idea of corporate personhood, what they're really fulminating against is the idea that corporations have First Amendment rights. Which should tell you just how likely SCOTUS is to distinguish between private individuals and corporations when it comes to First Amendment rights: not at all.

I'm not so sure about that. There's a big difference between whether corporations have a first amendment rights and can make campaign contributions and whether their speech is protected in the same ways as the speech of individuals.

To be fair, even individual speech may or may not be protected depending on the circumstances, so corporate speech may also not be protected in certain circumstances even if SCOTUS always treats speech by individuals and by corporations the same.

The New York Times is a corporation with a government-granted charter that grants it things like limited liability. It's fallacious to characterize it as just some ad-hoc "group" of individuals joining together to individually exercise their rights.

And yes, I agree that we don't actually have a free press. Given our microkernel government, institutions like the New York Times are better seen as part of the de facto government than independent organizations speaking truth to power - eg marketing the Iraq war. This relationship is easier to see with say Equifax than NYT, but the dynamic is similar.

Important to remember that corporations, like all groups, have no mouths, no hands, and cannot act.

All corporate actions, all corporate speech, is carried out by individual humans. Group rights are individual human rights, as groups have no brain and cannot act.

Except that there is a distinction between an individual performing an action of their own volition, and an individual performing an action to obtain income. The first represents the true will of the individual, while the latter only requires their desire to have a roof over their head.

And as I said, the entity of the NYT is afforded protections that individuals are not. If individual rights are supremely important to the individuals making up the NYT, the individuals involved are still free to act outside of their corporate shell.

New York Times employees are employed at-will. We're not talking about minimum wage workers publishing content under duress here, we're talking about journalists and editors who generally join organizations they believe in.

Tucker Carlson doesn't go on air and say the things he says because he's forced to, he does it because he wants to.

Full disclosure: my wife works for the New York Times.

So your wife never complains that work is pushing her to do something that she does not want to do, and she's bargaining with management to try to do the right thing? And the transaction costs to her quitting and finding a new job are zero? IMO "at will" is only 99% correct, and the integral of its remainder builds up into some gross misbehavior.

My wife has never been forced to publish anything against her will. That being said, she has disagreed with the editorial decisions of the paper on a number of occasions. This is not at odds with the freedom of association; every single organization is comprised of individuals that don't always agree with one another, but work together to overcome their disagreements. Nowhere has there ever been a guarantee that the freedom of association presupposes that every individual has the freedom to confer the exact same set of opinions to everyone in their association. Importantly, my wife doesn't feel like she's entitled to the power to censure other journalists or employees in her company. I know that I don't have the power to do that in my own company, nor should I.

There's disagreement within every group, that doesn't render the concept of free association invalid. The Catholic Church has its disagreements, but that doesn't mean that they lose the freedom to congregate because they're somehow no longer a bona fide association on account of that internal disagreement. The Democratic Party has its disagreements (heaven knows), the Republican Party is essentially at war with itself, the Libertarian Party can never agree on what it stands for because it's a motley crew of weirdos. None of this matters, they are all protected by the First Amendment, as associations. Whether they are traded on the NYSE, or they are 501(c)4 non-profit corporations, or they are just an amateur club, they are protected by the same First Amendment, and are subject to the same narrow limits on speech established by Brandenburg v Ohio (and all other relevant precedents).

Obviously the transaction cost to quitting and finding a new job is not zero; the Constitution's protection of the freedom of association has no guarantees on what the transaction cost to associate are. Just like free speech, you're free to say whatever you want, but you're not entitled to a free platform; promulgating speech costs money. You're free to keep and bear arms, but you're not entitled to a free rifle; guns cost money.

Associations are more than capable of gross misbehavior; but in manners related specifically to the publishing of speech and expression, they enjoy outsized protection, at least in the United States.

>> The Chinese room argument says otherwise, and it behooves us as homo sapiens to pay attention.

> I'm not sure what this sentence means.

I really should have said the implication of the Chinese Room thought experiment - intelligence arises from the constructive behavior of systems, distinct from their mechanical execution. As a (presumed) homo sapien, you should be interested in maintaining the existence of our own species versus entities that could subjugate us.

You keep asserting that organizations are no different from individuals, while completely ignoring every way I've pointed out how organizations differ from individuals. So I don't see how it's particularly productive to continue - you've seemingly made up your mind that desirable small-scale behavior implies desirable large-scale behavior by construction, and ignoring emergent behavior that arises out of scale.

> You keep asserting that organizations are no different from individuals, while completely ignoring every way I've pointed out how organizations differ from individuals.

I'm asserting that organizations are no different from individuals in the eyes of the law. That's what we're talking about here. The law explicitly protects the freedom to associate, and has no point of view on what the size of a valid association should be.

> you've seemingly made up your mind that desirable small-scale behavior implies desirable large-scale behavior by construction, and ignoring emergent behavior that arises out of scale.

If you go back and read my comments, I've not once made any prescriptions of what is "desirable" or what "should" be; I am strictly making descriptive statements about what currently "is" based on the (very accessible) text of the Constitution and the relevant precedents. You might be correct that large-scale group behavior is somehow undesirable — I don't have an opinion about that and might even agree with you! My point is that it doesn't matter, under the law. A group of 10 is protected the same way a group of 1000 or 10,000,000 are. As it currently stands, if you or I were a part of an organization, neither you nor I have any entitlement over how that organization chooses to officially express itself to the public, unless that organization explicitly empowered us to be able to do so.

If you think that the law should afford us the power to prevent the organization that we are a part of from expressing itself (even if we are in the minority within that organization) or if you think that the law should have carve-outs for different sized groups, that's a separate argument and discussion, and your best course of action there is to amend the US Constitution. We are currently talking about the legal merits of the Federal Legislature intimidating or hypothetically legislating news outlets for the content of their published speech under the status quo of the US Constitution.

> If you go back and read my comments, I've not once made any prescriptions of what is "desirable" or what "should" be; I am strictly making descriptive statements about what currently "is"

When talking about ideals and values, the wider context is what should be. Explaining the current law and its current application is straightforward, and isn't particularly worthwhile without a larger point. I don't see where your comments disclaim that you're only describing the current legal interpretation as opposed to physical reality or how things ought to be, which means that you're advocating for the status quo.

But sure, taking your comments as pure factual description of the legal situation - thanks for explaining the rationale leading to part of the problem of corporate entities becoming emergently unaccountable to us humans. If you'd care to discuss the problems with this, please go back and read my previous comments in their intended framework.

> which means that you're advocating for the status quo

I’m actually not advocating for anything. I'm using this conversation to understand what you're advocating for so that I can form my own opinion about what I should believe.

Looking back at this conversation, you said "I agree that we don't actually have a free press". It's clear from this conversation that you understand that in the status quo, we actually do have a free press, it's just that you find the implications of that to be undesirable; and you've made your best case for why that is.

My goal is to get you to be up front about the ramifications of your own proposal by admitting on the public record that you don't think that we ought to have a "free press". That helps me not only understand the implications of your proposal but also establish that you actually do believe in what you're advocating for despite the implications (the honesty is refreshing). It also allows me to understand what it really means to deviate from the status quo. In that regard, this was an illuminating exchange.

To the extent that I'm advocating for anything, it's that if you want to make any fundamental changes to the nature of press freedom in the US, the best way to do that is via the Constitutional Amendment process, and not by Legislative bullying. Even if one were to agree with the ends for which you are advocating (not saying that I do), I definitely disagree with the current means of achieving them.

> you said "I agree that we don't actually have a free press". It's clear from this conversation that you understand that in the status quo, we actually do have a free press

No, the status quo is to assert that we have a free press, as a tenet of our national beliefs. But looking at the actual governance of the US, much of the power structure resides outside of the de jure government. And that de facto government owns or supports most of the press.

> My goal is to get you to be up front about the ramifications of your own proposal

I've proposed nothing. I'm disputing assertions that backstop the status quo, chiefly that corporations should be viewed as plain groups of regular individuals coming together by voluntary association.

Regarding speech, a straightforward proposal one could create from this is that corporations' speech would be regulated as a condition of their government-approved incorporation (and groups of individuals would be free to avoid this by not incorporating). But I'm not proposing this, because I think the motivation behind this problem-narrative is mostly power coalescing, and an inevitable reaction to the fracturing of institutional authority.

Rather I'm making the general argument to point out that the interests of individuals are distinct from this battle of corporate versus government power - both "sides" are steamrollers to individually held rights. My own favored proposal is to move to Free p2p comms and leave both arms of the incumbent structure in the dust.

> It's fallacious to characterize it as just some ad-hoc "group" of individuals joining together to individually exercise their rights.

Nobody is arguing that the New York Times is some ad-hoc group of individuals; it certainly has its structure. The argument is that the same principles that afford an ad-hoc group of individuals the freedom of association (and expression) is what also affords a structured corporation like the New York Times the same protections. This isn't conjecture, it's the philosophy behind the landmark decisions of New York Times Co vs Sullivan, as well as Citizens United vs FEC (Citizens United was a 501(c)4 non-profit corporation).

At the end of the day, the New York Times doesn't have a mind of its own; the articles it publishes and advertisements it chooses to sell are the output of the individuals that work there, including the journalists and the editors.

If you and I want to join together and start a corporation for the purpose of advancing an issue, the First Amendment prohibits the government from enacting any law that may abridge that.

> And yes, I agree that we don't actually have a free press.

The Supreme Court has an established track record of aggressively protecting the rights of the organized press (NYT v Sullivan, Hustler Magazine v Falwell), group-speech (Citizens United), hate speech (Brandenburg) and even violent speech (Hess v Indiana). If that doesn't register as "press freedom", then I may as well lobby for legislation outlawing comments like yours on account of being misinformation.

> At the end of the day, the New York Times doesn't have a mind of its own; the articles it publishes are the output of the individuals that work there, including the journalists and the editors.

The Chinese room argument says otherwise, and it behooves us as homo sapiens to pay attention. How many individual reporters at the NYT wanted to give support the Iraq war? And yet that's what the entity itself ended up doing, using their contributions.

> Supreme Court has an established track record of aggressively protecting the rights of the organized press

You totally ignored my argument. The point is that most of what constitutes de facto government in the US is actually outside of what we call "the government", and resides in corporations. Hence pointing to Equifax, which explicitly promulgates constraints on our individual behavior, and yet has escaped all sort of democratic accountability.

> The Chinese room argument says otherwise, and it behooves us as homo sapiens to pay attention.

I'm not sure what this sentence means.

> > How many individual reporters at the NYT wanted to give support the Iraq war? And yet that's what the entity itself ended up doing, using their contributions.

I'm sure that individual NYT reporters disagreed with support for the Iraq War; but as a protected association, they are free to determine how they settle internal disagreements however they see fit. Every organization, group, corporation, and association has their set of internal rules, and the Constitution protects those associations specifically as it relates to speech and expression.

> Hence pointing to Equifax, which explicitly promulgates constraints on our individual behavior, and yet has escaped all sort of democratic accountability.

Not sure how Equifax is relevant. First of all, it isn't in the business of publishing speech; that's what we're talking about here. If Equifax wrote a blog post about how it should be free from legislation, it is well within its rights to do that. Second of all, if you're talking about Equifax's business practices, the user has no control over whether they interact with Equifax or not — THAT is the problem with Equifax. That's simply not true for Fox News or CNN or The New York Times where there's a direct relationship between seller and buyer. I'm not sure what Equifax has to do with any of this...

> "nothing more than the advocacy of illegal action at some indefinite future time"

So for this case, since there was a definite future time, it would indeed be imminent?

You can compare yelling "Fire!" in a crowded theatre to a lot of speech, for example, speech that is against a military draft. This was the original comparison.

Luckily we (the United States) prevent our government from restricting this type of speech.

Like bhupy pointed out above, is the misinformation present directed to inciting or producing imminent lawless action and is likely to incite or produce such action?

If a speech against the draft incites some subset of those who were present to insurrection, with the intent to detain and possibly murder elected officials, then it may not be protected as free speech.

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