Are there exceptions to the &quot;reasonable person&quot; standard? In Dominion v. Sidney Powell, the defense has invoked the reasonable person standard. It is my understanding that Powell's First Amendment right is not tested as the plaintiff is Dominion Voting Systems and not the government. Assume Dominion has actually suffered quantifiable damages (loss of business), caused by the Powell assertions. If plaintiff were to assert that Powell's statements were the extremist &quot;dog whistle&quot; that summoned unreasonable persons to cause said damages: How, if in any way, does the defense's reasonable person standard shield Powell? IANAL
Some simplified points of basic defamation law as background: A critical element of defamation law is that the defendant said something false. You therefore can't win a defamation case if it's based on a statement that can't be proven false: &quot;You are annoying.&quot; &quot;You are ugly.&quot; &quot;You are a bad lawyer.&quot; If a statement can't be proven false, it is considered opinion. Statments of opinion are virtually always protected by the First Amendment. Powell's brief relies on this framework to argue that because her statements were statements of opinion, no defamation could have occurred. It's like defending against a murder charge by saying that no one died. Although it isn't generally referred to as the &quot;reasonable person standard,&quot; reasonableness comes into this question because part of the calculus in assessing whether a statement is fact or opinion is to ask whether a reasonable person would understand the statement to be making an assertion of fact. Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). By leaning into that language, Powell is not saying that reasonable people would not have any reaction or would not have any specific reaction to her statements; instead, she is saying that reasonable people would not have understood her statements to be assertions of fact. Her argument seems to turn on the fact that she was speaking as an attorney representing a political candidate in a lawsuit, and that reasonable people understand statements made in that context to be &quot;inherently prone to exaggeration and hyperbole” and &quot;view them only as claims that await testing by the courts through the adversary process.&quot; For what it's worth, that seems to me like a pretty weak argument. While people expect a certain amount of puffery from their candidates, they also expect that lawyers representing the President of the United States aren't going into court with frivolous allegations. More importantly, though, I think she's running the analysis incorrectly. Rather than asking whether a reasonable person would understand her statements to assertions of fact, she's asking whether a reasonable person would think that she was prone to exaggerate in the setting in which she made those statements. As I understand it, a speaker cannot cloak statements of fact from liability by merely refraining from uttering them until she finds herself in a context where people expect some amount of loose speech. Even if you're a partisan hack with no credibility appearing on a TV show hosted by another partisan hack with no credibility, you generally can't accuse your opponent of being a murderer or child molester or something like that. Those are still assertions of fact, even if they're bookended with statements that &quot;Donald Trump is the greatest president this country will ever have.&quot; The brief does not rely at all on Hustler or the First Amendment protections for parody that were discussed in the previous answer. These tests are closely related, however, as both defenses claim that the speech was not &quot;false&quot; in the relevant sense.
A lawyer is obligated to accurately state the law as stated in the jury instructions in closing argument (and also not to make a clear and deliberate misstatement of the facts presented at trials, and also not to express personal knowledge of the facts based upon anything other than what the jury has seen). But a certain amount of poetic license is allowed so long as the closing argument is not so misleading, as a whole, that it is likely to lead the jury astray. In this case, the prosecutor is alluding, with poetic license, to the idea that an aggressor or interloper can't assert self-defense. You can't &quot;look for trouble&quot; and then be shielded by that doctrine. A more full quote from that prosecutor makes that more clear: you lose the right to self-defence when you’re the one who brought the gun, when you’re the one creating the danger, when you’re the one provoking other people I have no opinion concerning whether his statement does or does not cross the line. I'm not sufficiently immersed in the case, and don't have enough context from having heard the closing arguments as a whole, to have a confident opinion on that point. If there is an acquittal we'll never know. If there is a conviction and appeal and this is an issue raised on appeal, we might find out. Opposing counsel has a right to object in closing argument if it goes too far, and appealing an argument that a closing argument is objectionable is challenging unless it is preserved with a timely objection at the time. Particularly if the prosecution makes a misstatement in their initial closing, rebutting it in the defense closing may be more effective than objecting. But, if the prosecutor makes a misstatement in a rebuttal period to which the defense can't offer a corrective statement, an objection may be wise in order to preserve an issue for appeal.
In order to challenge a search at trial via an evidence suppression motion, the particular defendant has to have Fourth Amendment &quot;standing&quot;1 with respect to that search: Rakas v. Illinois, 439 U.S. 128 (1978). From the syllabus: Fourth Amendment rights are personal rights which ... may not be vicariously asserted ... a person aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Subject to the various exemptions to the exclusionary rule discussed at this question, the evidence in your scenario would not be admissible against Bob, but would be admissible against Rob. This does not necessarily mean that Bob would go free. As noted in that other question, if police/prosecution have other evidence, independently gathered, or sufficiently attenuated from the illegal search, they may still have a case against Bob. This also doesn't mean that an unconstitutional search of a person who will not even be prosecuted is without a remedy. See this answer for a discussion of civil remedies available for a person who has suffered an unconstitutional search. 1. The Court has distanced itself from the term &quot;standing&quot; in this context, so I am using it somewhat colloquially as it is still in common usage in this sense. The Court instead just conceives of whether the defendent even experienced a Fourth Amendment search; the notion of standing is either redundant with or subsumed by such analysis.
Ultimately this raises a question of balancing two fundamental rights: The right of the accused to a fair trial within due process of law &amp; the right to freedom of expression (or in the case of press publications as in most of the cases cited by this answer, the very related freedom of the press). Both the US &amp; Canada safeguard these rights in their constitutions (Amendments I, V, XIV &amp; Charter ss. 2(b), 11(d) respectively) so any differences would be in their approaches to balancing these rights. United States I've found Some Aspects of the Law of Contempt of Court in Canada, England, and the United States (Jacob S. Ziegel, 1960) to be highly informative on the historical development of contempt of court and provided a good baseline understanding. In reference to Bridges v. California 314 U.S. 252 (1941), it states Although the Court recognized that &quot;free speech and fair trials are two of the most cherished policies of our civilization&quot; and that &quot;it would be a trying task to choose between them&quot;, it held nevertheless that an abridgment on the freedom of the press was only permitted by the Constitution when there was &quot;a clear and present danger&quot; that the offending publication would actually interfere with a fair and impartial trial. The majority opinion rejected the &quot;reasonable tendency&quot; test which had been applied by the lower courts, and still is the yardstick by which such publications are measured in England and Canada. I'd also like to quote the following paragraph from Bridges as it raises two points I'd like to comment on: What finally emerges from the &quot;clear and present danger&quot; cases is a working principle that the substantive evil must be extremely serious, and the degree of imminence extremely high, before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law &quot;abridging the freedom of speech, or of the press.&quot; It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow. The first point is that due to its broad language, the court gives a certain priority to the First Amendment. The second point involves the age of my citations: the &quot;clear and present danger&quot; test is from Schenck v. United States, largely considered to be overruled by the more stringent Brandenburg v. Ohio 395 U.S. 444 (1969) &quot;immediate lawless action&quot; test. This does raise the question of whether Bridges can then be considered good law. I unfortunately can't find any good references discussing Bridges in a post-Brandenburg context, however, I would argue it is still valid. While the Schenck test has been overruled, the Bridges citation I gave in fact foreshadows the Brandenburg test by using the language of &quot;imminence&quot; and stating the Schenck test was not necessarily the limit of the First Amendment, but just a minimum bar. I would then argue that Bridges can quite easily be considered good law by simply substituting the Schenck test with the Brandenburg one without really affecting the court's ratio decidendi. Canada Ziegel's article is even more out-of-date when it comes to Canada as it is pre-Charter. For a modern Canadian overview of out-of-court contempt of court I've found A Comment on &quot;No Comment&quot;: The Sub Judice Rule and the Accountability of Public Officials in the 21st Century (Lorne Sossin &amp; Valerie Crystal, 2013). The article cites Dagenais v. Canadian Broadcasting Corp. [1994] 3 SCR 835 as directly tackling the balance of these rights. In it the court acknowledged the pre-Charter common law of giving deference to the accused's right to a fair trial, but noting that the Charter now requires a balancing of these rights The traditional common law rule governing publication bans -- that there be a real and substantial risk of interference with the right to a fair trial -- emphasized the right to a fair trial over the free expression interests of those affected by the ban and, in the context of post-Charter Canadian society, does not provide sufficient protection for freedom of expression. When two protected rights come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both rights. A hierarchical approach to rights must be avoided, both when interpreting the Charter and when developing the common law. The common law rule governing publication bans must thus be reformulated in a manner that reflects the principles of the Charter and, in particular, the equal status given by the Charter to ss. 2(b) and 11(d). Ultimately, the court concluded that a balance of these rights was the following test: A publication ban should only be ordered when: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. While Dagenais more clearly explains the balancing of these two rights, the article also cites R. v. Vermette [1988] 1 SCR 985 which is a much more similar situation to Maxine Waters commenting on an ongoing trial. The article summarizes as follows: While the trial was ongoing, the premier of Quebec, René Lévesque, denounced one of the defence witnesses in the National Assembly, despite warnings by the Speaker that such comments would be prejudicial to the accused. The trial decision even contains the following comment from the judge: When speaking in the National Assembly, however, the Premier enjoyed the privilege of Parliamentary immunity. Had it not been for this immunity, he could have been cited for contempt of court. Comparison At a constitutional level, it can be seen that the balancing of these two rights are not the same in the US and Canada. The US gives much greater weight to freedom of speech, while Canada allows restriction of speech if doing so more greatly benefits another Charter right and there is no reasonable alternative. On a practical level, there are also differences in how jury trials are run, maybe even as a direct result of the constitutional differences. In Dagenais, the court quotes the following: Generally speaking, however, the approach taken in the United States seems to be to allow for the widest possible latitude in media reporting of events transpiring prior to and during the course of the trial of an accused person. This is counterbalanced, in the interests of ensuring an impartial and unbiased jury, in a number of ways including, during the jury selection process, by an often searching examination into the attitudes, biases and even the personal and financial affairs of potential jurors and, after the jury selection process has been completed, by the sequestration of the members of the jury while the trial is in progress to reduce the risk of their exposure to the media and other publicity generated by it. In Canada, by contrast, the process of jury selection is neither as prolonged nor as exhaustive as a general rule; indeed the kind of questioning and probing into the affairs of potential jurors that is sometimes seen in the United States would be unlikely to be permitted under our system. Moreover, in Canada the sequestration of jurors throughout a trial occurs only exceptionally. The strong bias of our system is to prevent the dissemination before the conclusion of the trial of media publicity that might be prejudicial to the accused's fair trial. The US &amp; Canada simply follow different constitutional approaches here and have slightly different priorities when it comes to balancing rights.
I would probably have a legal disclaimer out of an abundance of caution. That being said, you have a right to free speech via First Amendment guarantees. While that right is not absolute and some words “by their very utterance” cause injury or incite an immediate breach of peace, and do not receive constitutional protection, (there is the old adage you do not have the right to shout fire in a crowded movie theater). This (your blog) is not that. To take it to its logical (or illogical) extreme, there are many things on the internet, in magazines, scholarly articles, etc. that could injure someone or cause damage in the event that one who was not qualified or competent to perform the action described undertook to do so. A child could burn themselves following the directions on a mac and cheese box but they shouldn't be cooking in the first place. The same rings true for high voltage electricity - a non-licensed electrician should probably not create a high voltage power supply. But, will some? Yes. But you are not liable for printing a blog about the practice. On another but related note, if you are a licensed electrician your licensing authority may require that you take precautions to ensure you do not inadvertantly direct others to engage in practices of licensed professionals that could cause harm by giving them information. I doubt this but I don't know because I am not an electrician. As far as could you be liable for writing it....under our legal system you can be sued under a theory of negligence for just about any action someone thinks was unsafe or causes injury. And you never know what a jury will do. But I think that to sue someone for simply writing something would be fairly easily dismissed through a motion for summary judgment by a competent attorney in the event you got sued. If everything a person wrote, that if followed by an unqualified person resulted in injury, resulted in liability for damages than it would have a chilling effect on their First Amendment right to free speech. That said, I go back to my original statement that it couldn't hurt to have a simple liability waiver for extra protection. It could be something as simple as: "The information contained herein is not mean to be comprehensive and is for informational purposes only. You should not undertake to perform anything described herein without adequate training and/or supervision. The Author disclaims any responsibility for any injury, damage, or loss as a result of reliance upon the information found on this site/blog." If you do use a liability waiver, make sure it is bold and obvious. Otherwise, it can backfire!
If an adult had physically restrained the miscreant brat, they could be sued for / charged with battery (which does not mean "beating up", per Cal Penal 242, it is the "willful and unlawful use of force or violence upon the person of another". In either case, there is a defense that can be mounted, the "defense of others" defense, to the effect that the person had a reasonable belief that it was necessary to prevent physical harm to others. Which means, the jury would imagine themselves in that situation and guess how likely it is that someone might get hurt. Lofting 5 lb chess pieces at a 2 year old could poke out an eye, especially since they haven't learned to duck at that age – however, I question (as would an opposing attorney) the characterization "quite dangerous". At any rate, it would depend on the level of danger posed. There is also a "proportionality" requirement for the defense of others defense: "The defendant used no more force than was reasonably necessary to defend against that danger" (CalCrim instruction 3470). The battery might not have been necessary, since simply getting between the criminal and his victims could have been sufficient. As to whether there would actually be a lawsuit, that depends in part on the mind-set of the parents. Assuming that the level of force did not rise above simple bodily contact, it is unlikely that a jury would vote to convict / find liable, but certainly not impossible. If under those circumstances the results would not be in serious doubt, then it is unlikely that the person would be prosecuted (the prosecutor wouldn't bother with such a case). We may also assume that a decent attorney would persuade the offended parent-client that it is not a good use of their money to pursue he matter. Still, the risk is not negligible, since you don't know whether you'll have bad luck with the jury, or whether the child suffers from eggshell skull syndrome and then you would be is serious trouble. I don't think the fears are unrealistic, though they may be improbable, and they could be definitive for people who live in fear.
Of course it is protected by the first amendment. Everyone in the US is protected by the first amendment. It's possible that some statements published on the site might fall afoul of any of the well established exceptions to first amendment protection, but in general the site is protected.
How is banning such events constitutional with the freedom of assembly? The rights created by the First Amendment are not absolute. They are subject to reasonable restrictions as to time, place and manner, especially if those restrictions are content neutral. Restrictions narrowly tailored to protect against genuine threats public health and safety fall within the exception of the First Amendment even if they are not strictly content neutral, that is commonly described by the rubric that you don't have a right to falsely cry "fire" in a crowded theater (causing a riot that could harm people). For example, suppose that a rope bridge over a deep gorge can only support the weight of ten people, and three dozen people want to hold a protest there. A regulation that prohibited more than ten people from engaging in the protest would be constitutional. Even then, however, a lack of content neutrality (e.g., restricting punishment to false statements likely to incite a riot) can't also be a lack of ideological neutrality (e.g. restricting punishment to anti-Catholic but not anti-Jewish statements likely to incite a riot). If it were a political protest/gathering would this change? Generally speaking political protest/gatherings are still subject to content neutral regulations of time, place or manner, and those narrowly tailored to protect genuine threats public health and safety. So, for example, if there is a genuine COVID-19 risk that public health officials are trying to address, and the regulation of gatherings is not viewpoint or content based, it would be upheld as constitutional in the face of a First Amendment freedom of assembly limitation. But, if the regulation applied, for example, only to Republican and not Democratic party protests or gatherings, which is a viewpoint or content based restriction, it would not survive a First Amendment freedom of assembly challenge.