First Amendment upheld 8-1

[Al B. Sure!]

Assault is a violent action (like punching at someone, but missing). Not speech.

That is not what I'm getting from this general definition... and what about in a tort context?

Generally, the essential elements of assault consist of an act intended to cause an apprehension of harmful or offensive contact that causes apprehension of such contact in the victim.

The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim.

Intent is an essential element of assault. In tort law, it can be specific intent—if the assailant intends to cause the apprehension of harmful or offensive contact in the victim—or general intent—if he or she intends to do the act that causes such apprehension. In addition, the intent element is satisfied if it is substantially certain, to a reasonable person, that the act will cause the result. A defendant who holds a gun to a victim's head possesses the requisite intent, since it is substantially certain that this act will produce an apprehension in the victim. In all cases, intent to kill or harm is irrelevant.

In criminal law, the attempted battery type of assault requires a Specific Intent to commit battery. An intent to frighten will not suffice for this form of assault.

There can be no assault if the act does not produce a true apprehension of harm in the victim. There must be a reasonable fear of injury. The usual test applied is whether the act would induce such apprehension in the mind of a reasonable person. The status of the victim is taken into account. A threat made to a child might be sufficient to constitute an assault, while an identical threat made to an adult might not.

Virtually all jurisdictions agree that the victim must be aware of the danger. This element is not required, however, for the attempted battery type of assault. A defendant who throws a rock at a sleeping victim can only be guilty of the attempted battery assault, since the victim would not be aware of the possible harm.

[Elok]

In the sense that it can be defined as "threatening to bodily injure someone," assault is sort of vaguely relevant. Still, easy answer: if yelling fire in a theater is a crime, so is attempting to intimidate others with threats of bodily harm. That's not expressing an idea or opinion so much as trying to exert control over others through fear.

EDIT: I'm not sure why Wiki's page on Assault has a link to "Curb-stomp" in its See Also section. I'm sure there are big Wiki arguments in the talk page about whether, in the interests of fairness, they should include links to Glasgow smiles and other barbaric hoodlum behavior as well.

[Al B. Sure!]

In the sense that it can be defined as "threatening to bodily injure someone," assault is sort of vaguely relevant. Still, easy answer: if yelling fire in a theater is a crime, so is attempting to intimidate others with threats of bodily harm. That's not expressing an idea or opinion so much as trying to exert control over others through fear.

Okay now... what about Klansmen burning a cross? Is that protected?

[Docfeelgood]

Okay now... what about Klansmen burning a cross? Is that protected?

good question

[Elok]

I don't know whether it's protected if they just do it on their own property (I'd assume so). When it's on a black guy's lawn, obviously not; in addition to trespassing and related laws, it's an obvious threat intended to intimidate, and runs afoul of hate crime laws. While I dislike the idea of "Hate crime" and think there ought to be a category for "intimidation" or "petty terrorism" or something instead, that's obviously a threat and not protected speech.

[Al B. Sure!]

I don't know whether it's protected if they just do it on their own property (I'd assume so). When it's on a black guy's lawn, obviously not; in addition to trespassing and related laws, it's an obvious threat intended to intimidate, and runs afoul of hate crime laws. While I dislike the idea of "Hate crime" and think there ought to be a category for "intimidation" or "petty terrorism" or something instead, that's obviously a threat and not protected speech.

Now is it being a threat intended to intimidate predicated by it occurring on someone's property or is it still a threat by virtue of it being done in the presence of a Black person?

I want to flesh out and understand the nuances of free speech; what determines what isn't protected and what is.

"I will kill you" is a threat but isn't a crime; making that threat while brandishing a weapon immediately becomes a crime, for example. But what else turns that into a crime? Why doesn't the possession of feet and legs which could be used to kill someone constitute the bearing of a weapon in this case?

[Whoha]

Okay now... what about Klansmen burning a cross? Is that protected?

On his own lawn? depends on the local regulations. The Christian guy with the 30ish foot burning cross needs a permit and insurance to make that kosher but is otherwise ok.

[Elok]

It's a threat when in contexts where a reasonable person would construe it as a threat. If they invite a black guy onto their property to "show him a surprise" or something, then he turns the corner and sees a burning cross, yeah, the most reasonable interpretation is that they're trying to scare the hell out of him. I don't see where you're going with this.

[Al B. Sure!]

It's a threat when in contexts where a reasonable person would construe it as a threat. If they invite a black guy onto their property to "show him a surprise" or something, then he turns the corner and sees a burning cross, yeah, the most reasonable interpretation is that they're trying to scare the hell out of him. I don't see where you're going with this.

Why must everything be 'going' somewhere? I'm asking questions and exploring. Maybe you missed it because I edited my post but I appended:

I want to flesh out and understand the nuances of free speech; what determines what isn't protected and what is.

"I will kill you" is a threat but isn't a crime; making that threat while brandishing a weapon immediately becomes a crime, for example. But what else turns that into a crime? Why doesn't the possession of feet and legs which could be used to kill someone constitute the bearing of a weapon in this case?

I'll add.. If a 200lb man makes that threat to a 120lb woman but he doesn't have a weapon, is that a crime?

[Elok]

A lot is necessarily going to depend on context and nuance; if a 200 pound man tells a 120 pound woman "I will kill you if you tell your sister and spoil this surprise party for her," I wouldn't define that as a serious threat. Fairly common exaggeration. However, if a 200 pound man tells a 120 pound woman "You slept with him? I'll kill you, you *****!" I would describe that as genuinely threatening. Really, there's too much that can change between different situations to draw a hard line or establish every possible contingency beforehand, so the "reasonable person" criterion, inadequate as it may be, will have to do.

WRT hands and feet, if a guy's built like a Rick Moranis character (one who isn't packing a Schwartz, of course), those should not be considered enough to make the words assault.

EDIT: I know basically squat about assault laws; this is just me doing an "if I ran the circus" bit.

[Wezil]

Also important is whether the threat is believable.

If you and I are talking online and I say "I'll kill you for that" (in obvious jest) it is not a credible threat.

Your neighbour saying the exact same thing over the backyard fence may be a different matter entirely.

[The Mad Monk]

Okay now... what about Klansmen burning a cross? Is that protected?

The act, by itself, is not criminal. It's all about the context, as others have said.

[Asher]

The act, by itself, is not criminal. It's all about the context, as others have said.

Yes, context is important. For example, broadcast news (a position of authority) and perpetuating known lies...

[Elok]

Yes, context is important. For example, this isn't the Fox-News-banned-in-Canada thread.

[Aeson]

The SCOTUS should have found that someone really needs to buy up property around Phelp's church and home and construct some very risqué and massive gay sculptures. SCOTUS