“Progressive” Protester in Wisconsin, about GOP Lt. Gov. Rebecca Kleefisch: Run, Rebecca . . . Run, get the FUCK out of the state . . . We’re coming after her anyways, so it doesn’t freaking matter anyways, win or lose . . .
     Hopefully the colon cancer will take her before we get her.

I have a question for security expert Larry Johnson, for attorneys, for all of you. There exists a Supreme Court doctrine known as “clear and present danger.” This doctrine determines “under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly.” (“Shouting ‘FIRE!’ in a crowded theater” is a popularized substitute for the SCOTUS doctrine, but is simplistic. More below.)

The question: Can protestors be afforded First Amendment protections when they make threats intended to incite dangerous acts against a lowly lieutenant governor, a Republican at that — specifically Lt. Governor Rebecca Kleefisch of Wisconsin? My two cents: What you hear in the video is, to my ears, no different than “threatening the President of the United States“:


In fairness, some one the left have noted that Kleefisch’s advocacy on colo-rectal cancer issues since her diagnosis in 2010, which has been critical to increasing awareness of the disease. According to the liberal Cap Times: “We certainly have our differences with Lt. Gov. Rebecca Kleefisch. But we recognize that she has stepped up as an outspoken advocate for colon-cancer survivors — and for Wisconsinites who might be at risk.”

Briefly, a bit of history — and there’s much more if you follow the links:

Clear and present danger

Clear and present danger is a doctrine adopted by the Supreme Court of the United States to determine under what circumstances limits can be placed on First Amendment freedoms of speech, press or assembly.

The clear and present danger test was established by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States,[1] concerning the ability of the government to regulate speech against the draft during World War I:

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.”

Following Schenck v. United States, “clear and present danger” became both a public metaphor for First Amendment speech[2][3] and a standard test in cases before the Court where a United States law limits a citizen’s First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a “clear and present danger”. However, the “clear and present danger” criterion of the Schenck decision was replaced in 1969 by Brandenburg v. Ohio,[4] and the test refined to determining whether the speech would provoke an “imminent lawless action”.

The vast majority of legal scholars have concluded that in writing the Schenck opinion Justice Holmes never meant to replace the “bad tendency” test which had been established in the 1868 English case R. v. Hicklin and incorporated into American jurisprudence in the 1904 Supreme Court case U.S. ex rel. Turner v. Williams. This is demonstrated by the use of the word “tendency” in Schenck itself, a paragraph in Schenck explaining that the success of speech in causing the actual harm was not a prerequisite for conviction, and use of the bad-tendency test in the simultaneous Frohwerk v. United States and Debs v. United States decisions (both of which cite Schenck without using the words “clear and present danger”).

However, a subsequent essay by Zechariah Chafee titled “Freedom of Speech in War Time” argued despite context that Holmes had intended to substitute clear and present danger for the bad-tendency standard a more protective standard of free speech.[5] Bad tendency was a far more ambiguous standard where speech could be punished even in the absence of identifiable danger, and as such was strongly opposed by the fledgling American Civil Liberties Union and other libertarians of the time.

Having read Chafee’s article, Holmes decided to retroactively reinterpret what he had meant by “clear and present danger” and accepted Chafee’s characterization of the new test in his dissent in Abrams v. United States just six months after Schenck.[6] Significantly unlike Abrams, the cases of Schenck, Frohwerk, and Debs had all produced unanimous decisions. Justice Brandeis soon began citing the “clear and present danger” test in his concurrences, but the new standard was not accepted by the full court until its official adoption in Brandenburg v. Ohio fifty years later.

Shouting fire in a crowded theater

“Shouting fire in a crowded theatre” is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.’s opinion in the United States Supreme Court case Schenck v. United States in 1919. The paraphrasing does not generally include the fact that falsely shouting fire to highlight that speech which is merely dangerous and false which can be distinguished from that which is truthful but also dangerous. The quote is used as an example of speech which is claimed to serve no conceivable useful purpose and is extremely and imminently dangerous, as they held distributing fliers in opposition to a military draft to be, so that resort to the courts or administrative procedures is not practical and expresses the permissible limitations on free speech consistent with the terms of the First Amendment of the United States Constitution. …

FOLLOW the links on these two Wikipedia pages for far, far more on what is truly a fascinating bit of U.S. history.

FOR EXAMPLE, under the Wikipedia entry on Threats to the President of the United States is this revelation (!):

The number of reported threats rose from 2,400 in 1965 to 12,800 in 1969.[10] According to some reports, President George W. Bush received about 3,000 threats a year, while his successor Barack Obama received about four times that many.[11] This figure has been disputed by Secret Service Director Mark Sullivan, who says that Obama receives about as many threats as the previous two Presidents.[12]

What can I say? Words from a nerd.

What are you up to today?