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How Not to Win an Argument About First Amendment Law

Summary:
“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law: * “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful] * “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law]  *

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“If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment,” argues Los Angeles litigator Ken White in an Atlantic essay. “Those tired tropes are barriers to serious discussions about free speech.” Among verbal gestures that help very little or not at all when you’re trying to establish whether particular speech is protected under current First Amendment law:

* “Not all speech is protected; there are exceptions to the First Amendment.” [true but usually not helpful]

* “This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.” [see above; also, an empty rhetorical device deployed in a case that’s no longer good law] 

* “Incitement and threats are not free speech.” [true, but regularly misapplied to speech that does not meet the law’s narrow definitions of these terms]

* “Fighting words are not free speech.” [same, even assuming that Chaplinsky v. New Hampshire (1942) is still good law]

* “Hate speech is not free speech.” [no, it mostly is]

* “Stochastic terrorism is not free speech.” [same]

* “We must balance free speech with [social good].” / “There is a line between free speech and [social evil].”

* “They do it in Europe!”

* “We talked to a professor and a litigator who said this is not protected speech.”

* “This speech may be protected right now, but the law is always changing.”

Watch and (if you’re like me) cheer as Ken dispatches them all.

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