The 1st Amendment doesn’t give anybody the right to be a racist prick. I am appalled by the ΣAE attorney’s “every 19 year old male is entitled to five minutes of foolishness” defense.
In this case, it wasn’t a question of “if” the racist rap presented a clear and present danger. It was a matter of when and where the violence would erupt. Two cops were shot in Ferguson, Missouri. Is there a link? Probably.
In a nutshell, the clear and present danger test was established by the U.S. Supreme Court in Schenck v. US in 1919:
The most stringent protection of free speech would not protect a man from falsely shouting fire in a theatre and causing a panic. . .whether the words used are used in such circumstances. . .to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.
Just like that,
Brandenburg v. Ohio has been cited by folks who apparently didn’t bother to read beyond the first few words of the opinion:
. . .a leader of the Ku Klux Klan. . .convicted. . .unlawful methods of terrorism as a means of accomplishing industrial or political reform. . .
Yes, he was in the KKK, but Brandenburg wasn’t a case about lynching or burning crosses on someone’s lawn. It was more a planned protest for an increase in the minimum wage. Big difference. The Court refined the clear and present danger test:
. . .inciting or producing imminent lawless action and is likely to incite or produce such action.
I’m not defending the actions of Jeffrey Williams, who has just been arrested for shooting those cops. I’m arguing that it eradicates the validity of any free speech defense by the ΣAE. Ferguson has been a tinder box for months, and the racist rap likely sparked the shooter’s violent rage. He was at the protest and claims he came back to shoot someone who pissed him off. Clear and present danger.