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Well, lines have been drawn. "Fighting words", "obscenity", "clear and present danger", "libel", and so on. There are a lot of checks on speech, some of which people feel go too far. And it's the purpose of the courts to set precedent and handle fuzziness.

Gaiman has talked about this quite well: http://journal.neilgaiman.com/2008/12/why-defend-freedom-of-... The quotable is "The Law is a blunt instrument. It's not a scalpel. It's a club. If there is something you consider indefensible, and there is something you consider defensible, and the same laws can take them both out, you are going to find yourself defending the indefensible."

Disturbingly, when dealing with free speech the US courts are actually more likely to defend the indefensible. For instance, the US Supreme Court unamously ruled that anti-draft speech - actual political speech - wasn't protected by the First Amendment in Schenck v. United States, and the same again with groups advocating Communism in Whitney v. California.

This precedent stood until Brandenburg v. Ohio when suddenly the Supreme Court reversed itself in order to stop the KKK from being outlawed, deciding that it was now suddenly really important for violent rhetoric to have full First Amendment protection. The KKK was actually much further over the line than the precedent-setting groups - they backed up their talk with a long and bloody history of actual violence and murder against black people. In fact some of the speech that the Supreme Court ruled was protected, such as cross-burning, was actually created as a warning to any black residents that they'd be next if they didn't leave town. Somehow the justices cared more about protecting this than they did about protecting actual, political statements that challenged the status quo.

I hadn't known that history; fascinating.

The Wikipedia entry for cross burning indicates that it has been handled negatively in the last five years–that is, the act of cross burning was not protected as speech–and makes no mention of Brandenburg v. Ohio. That Wikipedia entry does not indicate that cross burning was a significant question at stake in the case, since the matter being decided was the constitutionality of the Ohio statute.

Admittedly, that's just a reading of Wikipedia and I have no training in law of any kind, but it doesn't seem as provocative as you put it.

Another interesting tidbit is that the US does very poorly when considering 'freedom of speech' with respect to the media. In the Press Freedom Index, the US comes in at #47 of 179, as compared to the UK's #28 (and the raw scores aren't in the same neighbourhood either). It's just a reminder that speech in the US isn't as free as it's said to be.


That's completely justified. Although they're obviously both bad, harming the national war effort is far more dangerous than racism against a subgroup of citizens. The number of lynchings of black Americans doesn't even come close to the casualties suffered in WWI.

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