Free Speech vs. Real Danger: Legal Limits Explained

Added: 2026-04-30

[00:00:00]Now, I've represented people charged with similar stuff that said they were only joking, but it was taken quite seriously.

[00:00:05]>> Mhm.

[00:00:06]>> Um, now sometimes a lot of this depends on the I hate to say the political winds of the times, but if we're in a rash of school shootings or school bombings or school attacks, then guess what's going to happen? The human cry of the public is going to say, "We need to ratchet up all enforcement on this and make it clear that she can't do this."

[00:00:23]I My gut tells me that nobody actually in that chat thought she meant to have Netanyahu actually drop bombs on the auditorium.

[00:00:35]>> I mean, there's 200 students in there. I would imagine 90% of them would agree with that, but there's obviously somebody in here that took it pretty seriously because they reported it.

[00:00:43]>> Yeah, they reported it. So, so and so is threatening to bomb the school. I mean, like, come on.

[00:00:46]>> Could be somebody that doesn't like the student also.

[00:00:48]>> Well, look, there's all sorts of motivations. And now, now I guess the question is not whether we agree or disagree with this person being charged because who cares what we think.

[00:00:56]>> Yeah. question is what's the legal standard by which this stuff should be judged? But the big first amendment >> is right there and is the the real issue here is this protected speech under the first amendment or is it not? Mhm.

[00:01:09]There's a there's a long history of case law on this going way back to Shank versus the United States 1919 established that speech creating quote a clear and present danger of bringing about substantive evils also in quotes that Congress has the right to prevent is not protected. Justice Holmes famously noted that the first amendment would not protect a person from falsely crying shouting fire in a crowded theater.

[00:01:36]Everybody heard has heard that once or twice. Fast forward to 1969. Ohio makes it big again in Brandenburg versus Ohio.

[00:01:43]>> This is the modern standard ruling that speech advocating for illegal conduct is protected unless it is intended to and likely to incite imminent lawless action. Um this narrowed down that clear and present danger test uh to most political speech, even hateful speech, unless it incites immediate violence.

[00:02:03]Um, and then in there's another one in between, Chaplinsky versus New Hampshire in 42 talks about fighting words, uh, which a little bit