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“Clear and Present Danger” + Open Thread


     ”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“:

From “MADISON PROTESTER THREATENS KLEEFISCH, HOPES COLON CANCER KILLS HER – *EXPLICIT LANGUAGE*,” a Revealing Politics post:

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?

  • FormerLiberal9
  • HARP2

     Hitler finds out that Scott Walker won the Wisconsin recall election

    http://www.youtube.com/watch?v=VC_ult6-Tb4

  • HELENK2

    http://freebeacon.com/axelrod-on-independent-counsel-for-leaks-we-welcome-anybody-to-look-at-anything/

    axekrod and backtrack did not get their story straight on independent counsel for national security leaks

  • foxyladi14

    thehttp://theulstermanreport.com/2012/06/04/white-house-insider-barack-obamas-high-tech-snuff-films/ latest scary stuff
     

  • HELENK2
  • getfitnow

    It depends on what your definition of “is” is.
     http://cnsnews.com/news/article/holder-claims-emails-using-words-fast-and-furious-don-t-refer-operation-fast-and

    • HELENK2

       is that the same as
      how can you believe your lying eyes over me?????????

    • HoosierinDixie

       Eric Holder recently addressed black preachers on how to get out the vote for Obama. Afterwards a reporter asked several participants what they knew about Fast and Furious. Every single one of them thought it was about a car racing movie.

  • HELENK2
  • HELENK2
  • HELENK2

    http://wwwwakeupamericans-spree.blogspot.com/2012/06/feds-911-cancer-decision-delayed-for-no.html

    this angers me

    feds delay 9-11 cancer decision for no apparent reason

    • HELENK2

       these guys did their job and are paying a high price for doing so. Getting them the help they need in not too much to ask

  • HELENK2

    http://online.wsj.com/article/SB10001424052702303506404577448563517340188.html

    FBI opens investigation into national security leaks

    • getfitnow

       I read that Sec Gates told them to STFU re: Bin Laden.

  • HELENK2

    http://pjmedia.com/richardfernandez/2012/06/06/a-flock-of-flunkies/

    backtrack’s flock of flunkies

    this surprising article is from vanity fair

    • getfitnow

       ’very competent (Janet Napolitano’–
      no need to go further.

  • HELENK2
    • getfitnow

       did you see-in order to attend FLOTUS’ book signing, one needs…wait…a photo id!

      • MG6

        Geeesssh!  But not vote right….what a FU group of people.

  • HELENK2

    http://freebeacon.com/gop-probes-obamas-secret-deal-with-putin/

    GOP probe backtack’s secret deal with putin

  • HELENK2

    http://freebeacon.com/leaked-emails-endanger-obama-nominee/

    this does not look good at all. considering the leaks on national security topics

  • HELENK2

    http://www.newsdaily.com/stories/bre8560yl-us-usa-rating-fitch/

    DC better get off their dead asses soon and start 16 hour workdays to avoid rating drop in 2013

  • HELENK2
    • DianaLC

      Very funny!

  • MG6
    • DianaLC

      Good articles, MG6

  • MG6
    • KenoshaMarge

      About damn time.

      • BuzzLatte2

        It’s interesting how all of a sudden four years later this  info carries weight.

        We could have avoided the debacle called the Obama administration had the media been a neutral force.

        • KenoshaMarge

          The media has stopped doing it’s job of informing the public in order to be press agents.

          My guess is that this “new” information won’t make it into the MSM either.

          There are cracks in the Obamamedia slobbering love affair but my guess is that most will continue kissing his ass.

    • getfitnow

       Frankly, I learned this here, at NQ during the primaries ’08.

      Larry and therealbarackobama were way ahead of the curve.

  • Flop_Flipper

    I get the frustration. But I cannot condone threats of violence, even if they aren’t directly implied. Nothing of what happened in Wisconsin constitutes getting so worked up about things that even considering violent threats against someone who “won” is acceptable. The people of WI have spoken and that should be the end of it. Democracy is supposed to mean something.

    • sd78

      The Democratic party dumped “democracy” on May 31, 2008.

      • Flop_Flipper

        Ain’t it the truth.

  • Popsmoke

    Unfortunately unless there is a direct implied verbal threat …such as … I will kill you… It does not meet the Clear and Present Danger criteria.

    In this idiots case. I would recommend euthanasia to solve his acute case of cranial rectal inversion…..

    • DianaLC

      I don’t recommend euthanasia to most animals without homes, as I prefer to donate to “no kill” organizations.  As I said above, I would also never recommend euthanasia for a healthy young adult human, no matter how childish and mean that person seems.

      • Popsmoke

         Oh well.. to each there own. But good for you on the NO Kill for animals….

        Anyone who can hope for someones death should be judged in the same way….

  • lola828

    Yeah… that is really a “Progressive Protester”. More like an anarchist.

    Cherry picking one moron says absolutely nothing. Another completely meaningless post on NQ.

    • BuzzLatte2

      It got you to respond.  

      • KenoshaMarge

        Funny how one nutcake on the left is nothing. But one nutcake on the right is used to tar every Republican/Conservative in the country. The usual double standard by the left.

        And why would any rational individual spend time commenting or reading a “meaningless post?”
        Just stupid or lacking a life?

        • FormerLiberal9

           

          “And why would any rational individual spend time commenting or reading a “meaningless post?” Just stupid or lacking a life?”

          MONEY.

    • http://twitter.com/beyondpartisan beyond partisan

      Sorry, I know someone personally (who has disowned me over this – see below) – who also made similar threatening comments about Walker. The left has gone totally bonkers over this Wisconsin issue. 

    • FormerLiberal9

       He’s a Wobbly by his T-Shirt. Industrial Workers of the World.

  • HARP2

    Barry must be practicing for his next career in Hollywood.

     President Obama, in Los Angeles for a fundraiser, offered this observation on his wife’s exercise routine, via the pool report:

    “Michelle outdoes me in pushups as well,” he said, after saying that
    she’s taken some criticism on her technique “because she doesn’t go all
    the way down” – a line that he let hang, naughtily, provoking laughter
    from the crowd.

    http://www.politico.com/politico44/2012/06/obamas-risqu-joke-125518.html

    • TeakWoodKite

      P.I.G.

      • foxyladi14

         Don’t insult pigs like that Teak.       lol

    • KenoshaMarge

      Classy line from a less than classy Prezdint. Raunchy humor seems a tad less than presidential to me. I expect them to hold us to a higher standard.

      But what do I know, I voted for Bill Clinton. Twice. Gag.

      • FormerLiberal9

         I voted for Clinton twice and probably would again as his record and budget reductions were outstanding. He wasn’t perfect (to say the least ) but he sure was a lot better than BO.

        • KenoshaMarge

          Saying someone is a lot better than BO is damning with faint praise. I too would certainly vote for Clinton over BO. Clinton’s campaigning for Obama disgusts me.

          His shots at Obama seem petty and vengeful. I’m enjoying his trips off the Democrat Reservation but that doesn’t mean that I think they, or he, are very statesman like.

          Sometimes he would improve his image by just Shutting the fuck up. But Clinton seems  unable to do that.

          • FormerLiberal9

            But he is the “Big Dawg” and I’m loving those “petty and vengeful” shots he is taking at ” The One “. Trouble in LaLaLaLa Land? LOL

    • getfitnow

       It was clear from the beginning that she nor he have respect for the Office or the WH.

  • http://twitter.com/beyondpartisan beyond partisan

    Well, it’s shades of ’08. I had an acquaintance disown me today (off Facebook) for disagreeing with him about Wisconsin. He was totally going bonkers, and also making threats against Walker. The far left really does think this is the end of the world. 

    • KenoshaMarge

      To the far left an open election where the voters decided an issue that doesn’t agree with them is the end of democracy.

      The fact that it is the very essence of Democracy completely escapes them.

      I heard Juan Williams say on The Five that the problem was that Walker shoved his policy down the voters throats with a Republican State Legislature. When Andra Tantaros pointed out to him that Obama and the Dems had done exactly the same thing with “Obamacare” he insisted it wasn’t.

      There are none so blind as those who will not see.

      As for threats like this against a very nice woman who has faced her cancer with courage and using it to try to help others it is indicative of the minds of the far left.

      That @sshole should be in jail. Or a straight-jacket. Probably both.

      Just another shot fired in the left’s War On Conservative Women.

      • KenoshaMarge

        There is also news that there is an investigation into threats made against Walker.

    • FormerLiberal9

       My wife has had to unfriend several facebook friends who were rabid liberals. Fortunately they were only facebook friends and not friends in real life.

  • Deapster

    Creepy little people can take you down faster than strong powerful ones – they run in packs and have no central brain. So we now have a huge class war looming much like the 1960′s hippie movement had something to listen to underneath the anger and the dirt.

     Best we listen to what is fueling this new anger beyond its obvious shallowness – I don’t blame young people today for realizing the prior generation sold them out with massive debt they are stuck having to pay. 

    They don’t own the debt and it is unlikely that little twerp will ever do anything with his life to pay back into it. That is worth listening too. Which means we today must reign in public debt. 

    We also must drop this trash talk that anyone can grow up to be President of the United States and everyone’s darling is an honor student or the schools should be sued.

    Kids today did get duped. They may not be able to articulate this in terms other than class warfare and senseless anger. 

    But we are the adults and we need to cut up the credit cards, the guilt cards and set better examples about the skills young people need to take them into their own futures. You can’t eat pot. So that is not the answer either.

  • HELENK2

    sharpton continues on with the BS

    http://weaselzippers.us/2012/06/06/al-sharpton-republicans-cheated-stole-wisconsin-election/

    whining that the republicans stole the election.

    HE MAKES ME SICK

  • EllenD818

    California Update:
    Apparently a Republican get out the vote campaign has resulted in keeping Orly Taitz off the ballot as GOP contender against Feinstein.
    Awwwwww…

    It looks like this is the way California is going to deal with government employee pensions – not take away their bargaining rights but unilaterally shaving the pensions city by city. Can the State be far behind?
    http://www.nytimes.com/2012/06/07/us/politics/voters-in-california-approve-pension-cuts-results-suggest.html?pagewanted=all

    • twobits2

      She was on the ballot – she got 3.1% of the vote and came in 5th. Feinstein got 49.3% of the vote, so she will be in a run-off with Elizabeth Emken (a Republican).

      • EllenD818

        Thanks twobits2. I’m sure the California Republican party scrambled hard for Emken. The thought of Taitz going on to the final ballot gave them added incentive.
        Although it would have been more entertaining to have Taitz. ;)

        • twobits2

          John and Ken (radio show hosts on KFI) endorsed Taitz and she railed about how they went after her. She’s a nut case, unfortunately. Emken may have a chance against Feinstein, doubt if Taitz would have. There were about 12 people on the ballot – it was an open primary so all the candidates were lined up to choose from. Feinstein was at the top of the list, though.

          I’m still a registered Dem and when Newt was eliminated, I didn’t bother to change my registration, so got the Dem ballot. We could vote in all categories for whatever candidate we wanted, except for President. I just left that blank – kind of like the guy to be selected.

          I don’t know how hard the Reps were pushing for Emken – she did have their endorsement – since I wasn’t on their radar.

          • EllenD818

            Interesting, twobits2.
            I changed to NonPartisan and didn’t get any Presidential choices. Not sure why.
            Feinstein was about 3 or 4 down on my ballot.
            I don’t think anyone can take down Feinstein so the Taitz thing was simply amusing.

          • twobits2

            We have reached the point on Disqus where I can no longer reply to you directly.

            When I checked about the “open” election, I found that it wasn’t “open” in terms of the Presidential race – only Obama was on the Dem ticket and the Reps were on the Rep ticket, etc. If you were Non-Partisan, then you got no vote. I was annoyed, but it was my own fault for not checking sooner.

            I guess that because it was a Dem ballot, they had their big gun at the top.

            All I could think of, after this voting experience was that the State of CA was spending a heck of a lot of money on different ballots. So what else is new. Is 818 your area code? Mine, too.

  • HELENK2

    http://freebeacon.com/feinstein-on-intel-leaks-i-have-never-seen-it-worse/

    Diane Feinstein on intel leaks, I have never seen it worse

  • HELENK2
    • DianaLC

      This is what happens when we elect people who probably majored in sociology, political science, etc., because they knew they would pass since all they had to do was parrot their professor’s theories and then go on to be elected to office and think they know something about science and free markets.

  • HELENK2
  • HELENK2

    to those who served  THANK YOU

    http://www.youtube.com/watch?v=a2RvazDTKRw

    • shelldoll2

      helen2k  I am grateful and many of mine  and me are military or former military.  But you are now living in a world where warmongering, indefinite detention,  blowing up people and starting new wars is a good thing.  These are the same folks who believe we have no troops in Afghanistan and GITMO was closed.  These are the same folks that called for the impeachment of  GWB for the same actions.  These are the same idiots, like Sarah Jessica Parker, that think there are no American troops in Afghanistan.  Who does she think are directing said drones? The stupid. It burns..Drop your Hollywood  millions to support the same actions you  once decried and spent millions and made movies to stop.

      We average  Americans are laughing at you.  We read more books and news sources than you do.  Entertainment aside you are the biggest bunch of weasels I’ve seen in decades.

      To quote the Big Dawg “It’s the economy stupid”.

      • HELENK2

         like you I have several generations that served in the military. We can never repay the sacrifices made by the military and their families.
        It is the citizen soldier that keeps this country save.
        Bad decisions by  politicians always cost the citizen soldier  All we can do is make sure we stop stupid and lazy and selfish politicians from getting into office.

      • KenoshaMarge

        The day I let a POS Follywood type like Sarah Jessica Parker make up my mind about anything I’ll stop voting.

        • BuzzLatte2

          Mr. Big could have done a whole lot better than Carrie Bradshaw in incredibly bad wardrobe choices.

          • KenoshaMarge

            Carrie Bradshaw? Quarterback for the Pittsburg Steelers right?

            Cause if it was someone from the Sex and the City thing, I didn’t watch. Not my cup of tea.

  • HELENK2

    Iowa Hawk

    @BarackObama so does crow taste better than dog? #toughtoughercrunchy
     

  • FormerLiberal9

     After what happen to Gabby Giffords this kind of talk has to be taken very seriously. “We’re going after her” threats are not free speech and
    I firmly believe strong action should be taken by law enforcement.

    • KenoshaMarge

      Twitter was also flooded with death threats against Governor Walker.

      Almost as appalling as the threats was the nearly incomprehensible writing “style” of the near imbeciles who made them.

      Perhaps teachers, who say they are all about the kids, should get back in the classroom, quit complaining, and do their damn job. For instance, try teaching these cretins how to write a comprehensible sentence. That would at least be a good start.

  • HELENK2

    this video was made for this post

    http://weaselzippers.us/2012/06/06/video-shit-liberals-say/

    shit liberals say

  • HELENK2

    civil discourse has gone the way of the dinosaur. To many people today, their opinion or choice is the only one that matters. How could anyone disagree with someone as smart as they are?.
    When was the last time responsibility for your words or actions required?

    If that man had spoken like that in his  workplace ,he could be fired but threats on a public street not so much

  • EllenD818

    Disappointing that there are people egging these idiots on. I find the questioner as repulsive as the responder.

    • BuzzLatte2

      “What should we do with her?”  

      disgusting question.

      • EllenD818

        Absolutely!  Two young guys trying to outdo each other. Too many “reality” TV shows and frat-boy movies have fried their brains.

        • elizabethrc

          This young man should be identified and this video then should be sent to his employer.  I’d hate to be the one who has to work next to this violent, ignorant man.
          As to violent speech, I read on one site post after post talking about how they were going to kill the Lt. Gov.  They were stupid enough to put their pictures on their post.  They, too, should be ‘hunted down’ like the rabid swill they are, and prosecuted.

          • elizabethrc

            A quick update:  the police arrested the clown!

            Off topic but maybe important to get out there:
            I was listening to an interviewearlier with Chuck Reed, the mayor of San Jose, CA, on the pension vote.  He was listed on the scroll as a Democrat. I checked this and he is a lifelong democrat.
            A few minutes later Chuck Todd on MSNBC was discussing the situation and below Reed’s face was the letter “R”.
            I doubt this was a mistake and, knowing how slanted that network is, believe it was intentional.
            Someone with the ability to investigate and report this, needs to call them on this.

  • DianaLC

    I am going to admit that I was not happy with the Viet nam war.  HOWEVER…..having a brother and several cousins whose parents could not afford to send them to college and thus get a deferrment (and, besides, some of those cousins wanted just to come back to farm), I never protested the war or blamed the soldiers.

    I also never joined the “flower power” hippie dippie movement of drugs, sex, and rock and roll because I was too busy maintaining my GPA so I could keep my academic scholarship while working 25 hours a week to pay room and board and buy books.  (I walked to campus but drove to work and so paid for gas, too.)

    THAT SAID:  It always appears to me that the people who participate in these types of events–the OWS, this union-sponsored “proletariat” inspired behavior–are inexperienced, probably getting their way paid for by means that insure that they get to sleep for free somewhere, have food provided, and don’t have to do anything as demeaning as work for a living.

    I am sorry…..I am probably overgeneralizing.  But what kind of upbringing is it that creates an individual who would say something like that about someone he doesn’t know personally.  I never, ever, as much as I might dislike a politician, have made comments to the effect that I wish him or her dead or seriously ill.  Real civil discourse, isn’t it?

    The better question is this:  I wonder if this person has even ever considered how he would form a different and better society?

    I am guessing that, to answer your question, this idiot’s threat would no longer raise and eyebrow in our justice system.  But, that kind of behavior, I truly believe, is what spurred so many to finally work so hard to make sure that Walker and Kleefisch were not recalled.  I can only hope that idiots like this young man were sent packing out of town without a chance to change their diapers.