From: Mike Godwin <mnemonic@well.com>
Date: Tue, 2 Dec 1997 00:14:58 +0800
To: declan@well.com
Subject: Re: FC: Revolution and the limits of free speech online
In-Reply-To: <v0300780eb0a7fdaadba9@[204.254.22.168]>
Message-ID: <v03110702b0a88ced9138@[153.35.1.11]>
MIME-Version: 1.0
Content-Type: text/plain




The proper test is not the Yates test, but the test of Brandenburg v. U.S.
(1969, I believe), which distinguishes between mere advocacy of violence
and "incitement to imminent lawless action" that is "likely to result in
such action." Brandenburg is the leading case.

Under Brandenburg, Tim May or anyone else could call for violent revolution
(or for the commission of other violent acts) and the speech is understood
to be protected. Only an incitement to *imminent* (that is, immediate)
violent action, where such incitement is likely to cause an unreflective
response, is punishable.

The facts of Brandenburg concern a speech given at a KKK rally in which the
speaker called for a race war and "revengeance" against non-whites. The
speech was deemed to be protected by the First Amendment. The decision was
authored by Justice Hugo Black.


Mike





>----
>
>Date: Fri, 28 Nov 1997 00:45:48 -0500
>To: cypherpunks@toad.com
>From: Declan McCullagh <declan@well.com>
>Subject: Is Tim May guilty of illegally advocating revolution?
>
>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
>
>
>Date: Fri, 28 Nov 1997 07:25:01 -0500
>To: Declan McCullagh <declan@well.com>, cypherpunks@toad.com
>From: Duncan Frissell <frissell@panix.com>
>Subject: Re: Is Tim May guilty of illegally advocating revolution?
>
>At 12:45 AM 11/28/97 -0500, Declan McCullagh wrote:
>>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:
>
>There is no crime called "advocating revolution" or even
>"revolution."  The crime that is being discussed in such cases is
>"sedition."
>
>Any US Attorney will tell you that sedition convictions are hard to
>win because of the difficulty proving that the defendant actually
>tried to do so in a realistic way.  Tough.
>
>The trial of a group of isolationists during WWII and some white
>supremacists a few years ago resulted in acquittals.
>
>DCF
>
>
>
>Date: Sat, 29 Nov 1997 22:33:10 -0800
>To: Declan McCullagh <declan@well.com>, cypherpunks@toad.com
>From: Bill Stewart <stewarts@ix.netcom.com>
>Subject: Re: Is Tim May guilty of illegally advocating revolution?
>
>At 12:45 AM 11/28/1997 -0500, Declan McCullagh wrote:
>>	"//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)
>>
>>http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=354&page
>>=2
>Actually, the linewrap munged the "page=298" at the end, leaving a
>reference is Reid vs. Covert, another fascinating case,
>dealing with the limits on US jurisdiction on citizens outside the 48 states,
>in particarticular military jurisdiction and territorial jurisdictions
>(including pointers to the cases about confiscation of Mormon Church property
>during the Defense Of Marriage\\\\\\\\\\\anti-polygamy legislation.)
>
>Yates, a case about the legalization of Communism, is at
>http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=354&page=
>2
>98 .
>While the primary opinion of the court was as above, the court
>unfortunately stopped short of the blazingly absolutist defense of free speech
>by Justice Hugo Black (joined by Douglas), in an opinion that partially
>concurs and partially dissents, and is therefore only dicta.
>	"I believe that the First Amendment forbids Congress to punish people
>	for talking about public affairs, whether or not such discussion
>	incites to action, legal or illegal."   ......
>
>It was either this case or cases like it that spurred the
>John Birch Society to their calls for impeaching Earl Warren,
>even before that pinko compounded his anti-Americanism by
>insisting that cops read people their rights and get search warrants.
>
>As for the case of May vs. Reno, 99 US 666 (1999) (:-), I've never
>heard Tim call for the violent overthrow of the US government.
>He's called for a far more dangerous method of getting rid of it
>(rendering it obsolete and letting the public catch on at their own speed),
>and he's also expressed the position that if a bunch of
>black-hooded thugs invade his house some night he'll defend himself
>first and not worry about checking their bodies for stinkin' badges
>or designer logos on their backs until the bullets stop flying.
>
>Not guilty.
>
>
>				Thanks!
>					Bill
>
>
>
>Date: Sat, 29 Nov 1997 23:04:58 -0700
>To: Bill Stewart <stewarts@ix.netcom.com>, Declan McCullagh <declan@well.com>,
>        cypherpunks@toad.com
>From: Tim May <tcmay@got.net>
>Subject: Re: Is Tim May guilty of illegally advocating revolution?
>
>At 11:33 PM -0700 11/29/97, Bill Stewart wrote:
>
>>As for the case of May vs. Reno, 99 US 666 (1999) (:-), I've never
>>heard Tim call for the violent overthrow of the US government.
>>He's called for a far more dangerous method of getting rid of it
>>(rendering it obsolete and letting the public catch on at their own speed),
>>and he's also expressed the position that if a bunch of
>>black-hooded thugs invade his house some night he'll defend himself
>>first and not worry about checking their bodies for stinkin' badges
>>or designer logos on their backs until the bullets stop flying.
>>
>>Not guilty.
>
>An almost complete summary of my stance.
>
>But Bill left out the third leg of my tripod, that I expect to wake up some
>morning and learn that some major city, perhaps Washington, D.C. has been
>nuked or bugged.
>
>And, as I am fond of saying, I doubt I'll shed any tears.
>
>(Which got first twisted into "Tim wants to see D.C. nuked) (possibly
>true), and then further mutated into "Tim is involved in a conspiracy to
>help terrorists destroy major cities" (possibly true)).
>
>Fortunately for me, none of these legs of the tripod are (yet) illegal,
>though I gather from what I saw of several of Hettinga's recent foamings
>that he thinks they should be.
>
>--Tim May
>
>
>The Feds have shown their hand: they want a ban on domestic cryptography
>---------:---------:---------:---------:---------:---------:---------:----
>Timothy C. May              | Crypto Anarchy: encryption, digital money,
>ComSec 3DES:   408-728-0152 | anonymous networks, digital pseudonyms, zero
>W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
>Higher Power: 2^2,976,221   | black markets, collapse of governments.
>"National borders aren't even speed bumps on the information superhighway."
>
>
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----------------------------------------------------------------------------
We shot a law in _Reno_, just to watch it die.

Mike Godwin, EFF Staff Counsel, is currently on leave from EFF,
participating as a Research Fellow at the Freedom Forum Media Studies
Center in New York City. He can be contacted at 212-317-6552.
----------------------------------------------------------------------------