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Originally Posted by Original Position
Sorry, I wasn't clear. When I asked what the crime was, I was referring to the Brandenburg Test, which is limited to inciting people to imminent lawless conduct. The defendant did not incite any one to commit a crime, so the Brandenburg test doesn't show that this speech shouldn't be protected. The fact that MA law (or at least some judges in MA) say that this speech itself is a crime is what is under issue.
I agree. Let me back away from the Brandenburg claim, and try a different tack. I didn't mean that I thought she was guilty of incitement, I just thought there might be analogy. But the basic idea that I have is that there exist some circumstances under which an act of speech is directly and causally connected to a harmful outcome that the state has a legitimate interest in regulating, and that in some of those circumstances the state therefore has a legitimate basis to restrict those speech acts. Brandenburg hinges on the legality of the action being incited, but I was focused on the idea of causing direct harm to someone.
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Originally Posted by Original Position
After all, the First Amendment has precedence here, so you'd have to either show how this ruling is consistent with current law or make a new exception to federal free speech laws.
I did a little more reading and I'm not sure whether this ruling is consistent with current law. It does appear to necessitate some extension of Brandenburg. It may be that speech that causes harm is still protected. I'm not a lawyer, so I'm not trying to argue the legal merits of the decision. I just think some free speech restriction in cases where someones words directly and predictably cause harm to another person could make sense, although I agree it's a bit of a slippery slope.
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Originally Posted by Original Position
I would be very leery of attempting the standard you use above for involuntary manslaughter. What does wanton and reckless speech mean? For instance, I consider much of the posting here on 2p2 wanton and reckless - unlikely to lead to harm, but who knows. A lot of political speech is wanton and reckless, and very likely does lead to harm.
I think it's explicitly necessary to a finding of involuntary manslaughter that the "wanton and reckless" behavior caused someone's death. It's in the statue. A standard unlikely to be met with internet posting. That language in the statute doesn't apply outside those circumstances.
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Originally Posted by Original Position
But more importantly, people in romantic relationships often use wanton and reckless speech in ways that lead to harm (if not usually suicide). Having the state police this speech seems to me a big loss of freedom. Where else should people be able to say what they want if not there? I recognize that real harms can come from what people say, but I don't think that we should try to alleviate these harms through the courts.
You may be right, I just think it's difficult and it seems to me that there could exist some sets of circumstances where I wouldn't find a free speech defense persuasive.