Re: Censorship and First Amendment vis-a-vis NETCOM.COM refuses to act against Anti-Semitism

[AtlLawCPA <atllawcpa...>]

Sam Kaplan:

I read your post with interest but you make at least one statement that is
totally incorrect.  
>The U.S.Supreme Court settled the issue of free speech many years ago:
>private speech deserves protection; however, commercial speech does not.
>Moreover, the high court also found that private speech, under certain
>circumstances, does not have the benefit of total and absolute 
>protection, to wit, "screaming fire in a crowded, darkened, theatre".

>There is no screaming fire in a crowded theater issue here, since no
>one is crying fire, but rather is expressing a minority opinion that
>is particularly distasteful.

Commercial Speech is protected by the First Amendment.  While Justice
Douglas wrote in the 1940's that the First Amendment imposed no "restraint
on government as respects purely commercial advertising,"  that approach
has been abandoned starting in 1964 with NY Times v Sullivan, and later in
Bigelow v Virginia (1975), Bates v the State Bar of Arizona (1977);
prohibiting states from totally restricting advertising by pharmacists and
attorneys; and later in Metromedia v San Diego (outdoor advertising) and
Bolger v Youngs Drug Products Corp (1983) (court held condom advertising
as long as it was not misleading was protected by the First Amendment.) 
The protection of Commercial speech concerning advertising has recently
been limited.  A 1995 decision upheld a Florida law prohibiting attorneys
from sending direct mail solicitations to accident victims within thirty
days of the accident. Commercial Speech is protected, it just can be
limited within certain guidelines where the state has a compelling
interest.

Further, Justice Oliver Wendell Holmes said in Schenk v United States,
"The most stringent protection of free speech would not protect a man in
falsely shouting fire in a theatre and causing a panic."  

He never qualified it as being a CROWDED OR DARKENED theater