>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.
There is no line between abstract advocacy of murder and incitement to murder. Any claim that there is a difference is sinister.
>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?
Advocating that a person, or an entire class of persons, be murdered, is incitement to murder. To call that "free speech" is to undermine the very notion of free speech.
>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.
This analogy confuses otherwise criminal acts which are justified by the circumstances, with acts which are lawful in any circumstances. John Brown was a terrorist. You may think that terrorism was legally justified in the circumstances, but even if this was true, it doesn't follow that terrorism is always lawful.
Advocating terrorism is not "free speech". It isn't merely "abstract advocacy" if it is advocated in a particular circumstance that actually exists. Although I would agree that it is merely hypothetical and abstract advocacy if the circumstances in which it is being advocated don't exist. So for instance if today you were to publicly argue that it is justified and necessary to engage in terrorism against southern US slave-states etc, to defeat slavery, that is "abstract".
If you were to do it in 1855, that is not "abstract". Because the targets of the terrorism you are advocating actually exist and would have genuine reason to fear for their safety as a result of your advocacy.
Likewise, if you were to advocate today that it was justified to conduct terrorist attacks against people or groups that actually exist, such as Jews or blacks, or immigrants, no way is that "abstract advocacy". Certainly not to the people who you have advocated be attacked.
Too bad if you feel that is an infringement on your "right" to free speech. It certainly is, just as the prohibition against discharging a firearm in a crowded public place is an infringement of the freedom of the firearm owner. But free speech, like other freedoms, is not an unlimited right. It is only proper that the boundary of freedom be the point at which exercise of that freedom will probably undermine the freedoms of others.
Bill Bartlett Bracknell Tas