---
title: ""White: It’s a perfectly fair question. The legal system disfavors…"
date: 2019-08-03
source: facebook
type: Archer T. Ships shared a link.
---

# "White: It’s a perfectly fair question. The legal system disfavors…

*August 3, 2019 · Facebook*

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[https://abovethelaw.com/2019/08/should-the-north-carolina-gun-store-billboard-targeting-the-squad-be-unconstitutional](https://abovethelaw.com/2019/08/should-the-north-carolina-gun-store-billboard-targeting-the-squad-be-unconstitutional){target="_blank"}
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\"White: It's a perfectly fair question. The legal system disfavors the powerless --- particularly racial and religious minorities. Rules devised by the system tend to do the same. The way the system works tends to do the same.\
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But --- here's the key --- exceptions to constitutional rights absolutely follow the pattern. Put another way, any exception to free speech will be disproportionately applied against the powerless, and especially people of color.\
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The history of free speech law bears this out. Very little of it is about trying to put limits on racists. Most of it is about trying to put limits on the powerless --- about the system finding excuses to jail poor people, people of color, unpopular people.\
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So, consider the cases involving a broad reading of incitement, the ones that might support prosecuting someone for a billboard like this. Consider Schenck v. U.S., in which Justice Holmes gave us the fatuous "fire in a crowded theater" trope. Schenck's about prosecuting a socialist for distributing handbills suggesting that poor people resist the WWI draft. THAT'S what got the Supreme Court to articulate a very broad and unprincipled incitement standard, the type you'd need to reach a billboard like this.\
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Or consider "fighting words," a doctrine almost never applied by courts but often raised by people wanting broader bans on speech like this.\
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Chaplinksy --- the poor bastard whose case led to the "fighting words" doctrine --- was a Jehova's Witness, a sect that was revoltingly prosecuted in the 30s and 40s. It's an ugly bit of history most people don't know about. Chaplinksy was streetcorner preaching and a crowd assembled and was threatening him, and a dude tried to RUN HIM THROUGH WITH A FLAGPOLE WITH THE AMERICAN FLAG. But the cops were wanted HIM to stop preaching, so he swore at a COP, and they arrested HIM, and the Supreme Court says that HE'S the one uttering the fighting words.\
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That's the way these cases go. True threats doctrine? Developed on the backs of Vietnam War protesters.\"
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