Divining intent isn’t the right threshold to judge speech. If it were then I can say whatever I want in whatever environment, because how would you prove my intent?
I yell fire in a crowded theatre, that’s ok it wasn’t my intent to cause panic.
Only because your words caused actionable harm. If you didn't intend to cause harm and there were no harmful consequences should you still be punished?
> I yell fire in a crowded theatre, that’s ok it wasn’t my intent to cause panic.
The "fire in a crowded theater" analogy was coined by justice Oliver Wendell Holmes, Jr. in Schenck v. United States.[1] Holmes used that analogy to send a Schenck to prison for protesting the draft in WWI.
