> Fighting Words. In the 1942 case Chaplinsky v. New Hampshire, the Supreme Court held that speech is unprotected if it constitutes “fighting words,” which are defined as speech that “tends to incite an immediate breach of the peace,” through the use of “personally abusive” language that “when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction.” Certainly, all racist, misogynist, homophobic, and other slurs could be folded into this category and prohibited by social media sites.
This entire section is just wrong. Fighting words are extremely narrowly defined, to the point where if you don't get punched in the face within a few minutes of saying something, it is not fighting words under law. The original definition of fighting words was laid out at a time when honor duels were still common, and that is the environment under which they were defined. Since then, every higher court decision referring to them has narrowed, not expanded their definition. There is no way a slur on the internet can be construed as fighting words as the law currently exist.
> The original definition of fighting words was laid out at a time when honor duels were still common, and that is the environment under which they were defined.
You're right that it's a very narrowly defined carve out that has since been narrowed further, but it's definitely from the 1940s from the cited Chaplinsky v. New Hampshire.
He's got "incitement" wrong too; he's concluded that incitement is about "imminence", which is a factor, but the larger factor is intent. If Twitter was held to the 1A standard on incitement, it would be unable to block a great deal of content that was likely to cause imminent lawless action.
"Advocacy of" and "intent" aren't the same standard either!
Again: if Twitter was held to the 1A standard, there is a great deal of content likely to cause imminent lawless action that they would be unable to block.
The expectation that your own words are going to cause the lawless action, rather than supporting an action that was going to happen with or without them.
The entire Brandenberg case is about the distinction, on this particular word.
I don't think anyone can know what's going to happen with or without their participation, but granting that for the sake of argument, he also quoted "directed to inciting or producing imminent lawless action". (Edit: also "organize actions that spill over into the physical world")
The article, IMO, made it clear enough that information that causes violence but wasn't intended to cause violence is protected by the 1st amendment.
The bullet's heading is "incitement", the purpose of the bullet is to explain the clear "incitement" standard that Twitter could rely on to block content likely to cause harm, and we've reached a point where we're using the word "inciting" to define it. Like I said, this is a hash of an argument.
There is a clear legal standard for incitement. Sacks hasn't articulated it. Either he doesn't know what it is, or he does know, but smartly recognizes that it cuts directly against his argument. The point he wants to make is that First Amendment jurisprudence already provides a basis for service providers to eliminate the most objectionable content. It does not.
Particularly in the case of incitement: if Twitter was held to the 1A standard, it would be unable to block a great deal of content likely to cause imminent lawless action.
That's a fine objection to his proposal (though perhaps better with examples of information protected by the 1st that you want Twitter to ban).
But I don't think it's a fair criticism of his article. I clearly understood from his writing that the "Incitement" exception only covers information intended to cause violence in the near future.
I don't know if he's familiar with the precise legal language, but even if he is, it wouldn't be appropriate to use it in this article for laypeople. He's using common English.
No, he's not. He's obviously not. He's listing the specific notable exceptions to the First Amendment's bans on prior restraint. He goes out of his way to attempt to depict the specific legal language.
It's odd that the 'General Partner and Co-Founder of Craft Ventures. Previously: Founder/CEO of Yammer. Original COO of PayPal.' came to such a mistaken belief regarding fighting words in modern legal practice.
Carelessness in fact checking seems to becoming more common even among otherwise competent people.
Repeating something I said downthread: being a General Counsel for a VC firm or a company has very little to do with Constitutional Law or First Amendment law or, really, even defamation (which is something that does come up in companies). If the GC of a typical company has to deal with a defamation suit, they retain outside counsel to do it, because the law is hyperspecialized.
First Amendment Twitter runs a cottage industry of dunks on well-regarded lawyers saying stupid things about 1A jurisprudence. I'm not a lawyer, but I follow 1A Twitter, and I think this would qualify; for instance: the "incitement" section refers to "clear and present danger", which is the Schenck standard, which was famously overturned by Brandenburg. My understanding is that this, to 1A law, is about as fundamental as knowing the difference between a hash table and a tree is to a software developer.
This entire section is just wrong. Fighting words are extremely narrowly defined, to the point where if you don't get punched in the face within a few minutes of saying something, it is not fighting words under law. The original definition of fighting words was laid out at a time when honor duels were still common, and that is the environment under which they were defined. Since then, every higher court decision referring to them has narrowed, not expanded their definition. There is no way a slur on the internet can be construed as fighting words as the law currently exist.