The Constitutional Rubicon of an Assange Prosecution

Razer g2s at
Tue May 9 19:18:58 PDT 2017

On 05/09/2017 03:00 PM, jim bell wrote:
> *From:* Razer <g2s at>
> >With links:
> >
> >
> > Elizabeth Goitein co-directs the Brennan Center for Justice’s Liberty
> > and National Security Program. Before joining the Brennan Center, Ms.
> > Goitein served as counsel to Sen. Russ Feingold and as a trial
> > attorney in the Federal Programs Branch of the Civil Division of the
> > Department of Justice.
> From that article:
>     "And if they knowingly print information that presents a “clear
> and present danger” to public safety—the equivalent of incitement, or
> of yelling “fire” in a crowded theater—they could presumably be
> prosecuted
> <> (although
> no such prosecution has ever taken place)."    [end of quote]
> No, the "clear and present danger" test
>   , to the
> extent it had any validity at all,  was overturned in 1969 by
> Brandenburg v. Ohio.  
> "The U.S. Supreme Court reversed Brandenburg's conviction, holding
> that government cannot constitutionally punish abstract advocacy of
> force or law violation. The majority opinion was /per curiam
> <>/ (issued from the Court as
> an institution rather than as authored and signed by an individual
> justice). The earlier draft had originally been prepared by
> Justice Abe Fortas <> before
> he was forced to resign in the midst of an ethics scandal, and would
> have included a modified version of the clear and present danger
> <> test. In
> finalizing the draft, Justice Brennan eliminated all references to it,
> substituting instead the "imminent lawless action" language.^[10]
> <>
>  Justices Black and Douglas concurred separately."
> As stated in the
>    "Antiwar protests during World War I gave rise to several important
> free speech cases related to sedition and inciting violence. In the
> 1919 case /Schenck v. United States
> <>/, the Supreme
> Court held that an antiwar activist did not have a First Amendment
> right to advocate draft resistance
> <>.^[3]
> <>
> ^[4]
> <>
>  In his majority opinion, Justice Holmes
> <,_Jr.> introduced
> the clear and present danger test, which would become an important
> concept in First Amendment law; but the /Schenck/ decision did not
> formally adopt the test.^[3]
> <>
>  Holmes later wrote that he intended the clear and present danger test
> to refine, not replace, the bad tendency test.^[5]
> <>
> ^[6]
> <>
>  Although sometimes mentioned in subsequent rulings, the clear and
> present danger test was never endorsed by the Supreme Court as a test
> to be used by lower courts when evaluating the constitutionality of
> legislation that regulated speech.
>               Jim Bell

The Espionage act assumes that "a clear and present danger" would be the
reason for the charges,  and the test for it would be of a different
sort than crying FIRE in a crowded theater or an antiwar protest
scenario, because, as seen with the vilification of Phillip Agee, they
claim it causes immediate danger to national security intelligence
operations and personnel. Not hypothetical or potential danger.

If you look at the page it has a link to the author's twitter. If you
use twitter you might want to contact her for clarification.

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