Bagdasarian and Brandenburg

[Kennah]

http://www.time.com/time/nation/article/0,8599,2084921,00.html

There is no easy way of handling political speech that carries with it a suggestion of menace. On the one hand, we want people to be able to criticize government, elected officials, and candidates passionately and emphatically. In 1969, in a case called United States v. Watts, the Supreme Court reversed the conviction of an 18-year-old for saying, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The man was expressing his strong opposition to being drafted for the Vietnam War and, the court noted, "he language of the political arena... is often vituperative, abusive, and inexact."

On the other hand, threats can go too far. In 2002, the 9th Circuit reviewed a damage award against a website with an online "wanted poster" that included home addresses and other personal information about abortion workers. In that case, a sharply divided court ruled that the website contained "true threats" that were not protected by the first amendment. The court considered not only the words and images but the reality that abortion providers were actually being shot and killed in parts of the U.S. around the same time.

The issue of online hate speech does not lend itself to absolute pronouncements. If the law is too tough, freedom of speech will be constrained in the most important forum available today for the public to discuss politics. If the law is too lenient, it will allow the Internet to be used as a means of instilling fear and organizing domestic terrorism.

In United States v. Bagdasarian, the 9th Circuit struck the right balance, upholding the public's right to make loathsome statements that come close to - but do not reach - the level of a true threat.

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In all the discussion about Bagdasarian, I'm surprising no one has raised up Brandenburg v. Ohio.

Bagdasarian's behavior was shocking, to say the least, but Brandenburg was even more extreme, IMHO.