Staying in roughly the same neck of the woods, I want to discuss a piece in the LA Times on the subject of limits to free speech. It's by Sarah Chayes and she starts by noting that not all speech is protected under the US constitution. Referring to Supreme Court Justice Oliver Wendell Holmes, who famously wrote that shouting fire in a theatre and causing a panic would not be protected, Chayes says that according to the current standard for restricting speech, 'only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited'.
What interests me here is a distinction that emerges later in her column. The distinction is between imminent violence due to 'speech explicitly advocating violence' and imminent violence merely resulting from speech that is intentionally provocative.
I have no competence to pronounce on the state of US law, but this distinction strikes me as problematic - or, rather, the provocation side of the distinction does. The open urging of violence, I would have thought, can be identified independently of the subjective frame of mind of those being actively urged to it. On the other hand, provocation of violence, when nothing is being said explicitly in its favour but the beliefs of others are being mocked or insulted, is harder to define without reference to the susceptibility of the target audience. Some people are phlegmatic or indifferent, others irascible, yet others on the lookout for occasions for trouble, and so forth. Some are more easily provoked than others. Can this variation be a reliable basis for just and effective law? (Via Oliver.)