It’s worth noting that the Supreme Court case that decided this, Schenck vs United States, was primarily about outlawing anti-draft speech. (In a sense, this actually strengthens the parent comment’s argument; speech which might cause harm, like a fake EAS or anti-draft speech, really should be protected by the 1st Amendment.)
How does broadcasting this tone create a clear and present danger?
It's merely a call to attention and then you need to listen to and process the subsequent message. The tone itself does not create a clear and present danger, but the subsequent message may.
There's no notion of panic or stampede with this tone, it only communicates "hey, listen up, there's something that may be important for you to know about". I'm sure that many of those living in America on HN have been subject to EAS messages that were not of serious concern since it's used pretty liberally for even minor concerns like a tropical storm.
It's also worth know about the Supreme Court case (Schenck v United States) that lead to Oliver Wendell Holmes, Jr's opinion that lead to this legal test, since the issue at hand in that case would most likely be protected by the 1st amendment today. Furthermore, Holmes eventually reversed his position in Abrams v United States.
No reasonable person would look at any of the examples where a fine has been issued over use of the EAS signal and conclude that any of those artistic statements were even close to creating a clear and present danger.
"How does broadcasting this tone create a clear and present danger?
It's merely a call to attention and then you need to listen to and process the subsequent message."
False alarms can create a danger because they condition people not to take an alarm seriously.
Even if people are pretty conscientious about treating alarms as if they are real, very few of them will continue doing so against peer pressure.
> because they condition people not to take an alarm seriously.
That'd be a stronger argument if the EAS and its predecessor the EBS were not broadcast with sufficient regularity that people approach such messages with some degree of skepticism already.
I was looking over the Wikipedia article for the EAS and I found one illegal broadcast interesting:
> In February 2011, the morning show of WIZM-FM in La Crosse, Wisconsin played a recording of the aforementioned "dead bodies" EAS hack. It inadvertently triggered the EAS on WKBT-DT, relaying both the message, as well as the hosts' laughter
Not even being able to discuss and listen to related primary material of a recent newsworthy event definitely gets into first amendment violation territory.
Since when is a tropical storm a minor concern? That’s one of the stranger assertions to wake up to on a Saturday morning. The National Weather Service maintains a nice list of EAS event codes here: https://www.nws.noaa.gov/nwr/info/eventcodes.html
47 CFR 11.31 defines the AFSK signal used for transmitting EAS alerts. The encoder settings are unique enough to not be accidentally used in any regular setting. For emergency planning purposes especially in lessons learned post-Katrina, avoiding alert fatigue was deemed by internal & external evaluators as being critical. The cited code section is here: https://www.law.cornell.edu/cfr/text/47/11.31
As for being artistic, sometimes there are boundaries. This is one that shouldn’t be crossed.
