Why is it illegal for a mobster's lawyer to say that as long as it isn't actual incitement (or orders) to do it? Doug could lawfully as publicly (say here on the list) that he wanted you wacked. Abstract advocacy is protected, that's the rule in Branden berg v. Ohio. Incitement to immanent unlawful activity can be proscribed, and solicitation to commit a crime is a crime itself and could incur accomplice liability through the hook of conspiracy or aiding and abetting. In the mobster's lawyer's case, there might be reason to think that the announcement fell in the unprotected and perhaps in the criminal category because the mobster has an organization that might (it could be argued) construe the announcement as incitement or orders to whack the guy forthwith. But if only the unorganized have freedom of speech, what about the Communists? Or the Green Party, for that matter?
Whether Stewart's actions (the cease-fire case you describe) were illegal hasn't been determined. The Second Circuit, and perhaps the Supreme Court, may end up telling us what the positive law is for now. What the law should be, or "really" is --w ell, we are debating that now.
>
> 2) If illegal, does it fall into the tricky category
> of righteous
> lawbreaking? (I don't think anyone would want to
> condemn a lawyer who broke
> the laws of attorney-client privilege to facilitate
> the underground
> railroad. But respect for the rule of the law as it
> is, and not just the
> spirit of what it ought to be, generally needs to
> count for a lot.)
>
Agreed about the rule of law in the abstract. As to whether this action was morally weighty enough to overcome any obligation that might exist to obey the law, doesn't that depend? There's a difference between blowing up bombs in the World Trade Center, what the Sheik is imprisoned for for, and the armed struggle in Palestine/Israel. Calling off the ceasefire furthered that struggle. Lots of sane and decent, nonfundamentalist people consider that struggle to be righteous. It is certainly not mad to think that it is within the bounds of legitimate civil disobedience to act to support it.
In this connection, the relevant analogy is not the underground railroad, but John Brown's raid on Harper's Ferry. Brown is still widely considered a hero. If he had had a lawyer, and the lawyer had acted to say something that supported his armed struggle against slavery, would he be justified in doing so even if the speech was unlawful? That's not so easy to deny.
jks
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