From: Declan McCullagh <declan@well.com>
Date: Fri, 28 Nov 1997 14:02:41 +0800
To: cypherpunks@toad.com
Subject: Is Tim May guilty of illegally advocating revolution?
Message-ID: <v03007807b0a402308a96@[204.254.21.48]>
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So I've been reading "Freedom and the Court" by Henry Abraham, and a
passage in it made me think of Tim May and the cypherpunks list:

	"//Actual, overt// incitement of the overthrow of the government
	of the United States by force and violence, accompanied by the
	language of direct and imminent incitement, is not freedom of
	expression but a violation of Court-upheld legislative
	proscriptions; yet the //theoretical// advocacy of such
	overthrow, on the other hand, has been a judicially recognized
	protected freedom since 1957." [See Yates v. United States, 354
	U.S. 298 (1957), particularly Mr. Justice Harlan's opinion for
	the 6:1 court.] (Emphasis in the original. --DM)

Some civil liberties lawyers, incidentally, have told me that Internet
messages almost by definition are probably not "direct and imminent
incitement."

Some excerpts from Yates v. United States:

http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=354&page=2
9
        The essential distinction [354 U.S. 298, 325] is that those to whom
	the advocacy is addressed must be urged to do something, now or
	in the future, rather than merely to believe in something. [...]

        Instances of speech that could be considered to amount to "advocacy
	of action" are so few and far between as to be almost completely
	overshadowed by the hundreds of instances in the record in which
	overthrow, if mentioned at all, occurs in the course of doctrinal
	disputation so remote from action as to be almost wholly lacking
	in probative value. Vague references to "revolutionary" or
	"militant" action of an unspecified character, which are found
	in the evidence, might in addition be given too great weight by
	the jury in the absence of more precise instructions.
	Particularly in light of this record, we must regard the trial
	court's charge in this respect as furnishing wholly inadequate
	guidance to the jury on this central point in the case. We cannot
	allow a conviction to stand on such "an equivocal direction to
	the jury on a basic issue."

-Declan