Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'

from the dead-and-buried dept

You hear the phrase all the time, often being used to explain why there are "limitations" on the First Amendment: "You can't yell fire in a crowded theater." It's come up quite a bit recently, in response to both the "Innocence of Muslims" video and the @comfortablysmug guy on Twitter tweeting bogus claims. However, the quote is almost always taken out of context, and all too often used as a crutch to defend blatant censorship that does, in fact, violate the 1st Amendment.

Back in September, Ken White wrote a great piece pointing out why the quote is used out of context by those in favor of censorship, and now Trevor Timm is pointing out why it's time for this phrase to be kicked aside. Both articles are absolutely worth reading, and remembering the next time someone uses the "fire in a crowded theater" line.

As the pieces both note, the original quote was said by Supreme Court Justice Oliver Wendell Holmes in a case, Schenck v. United States, but there are a few important facts often left out:
  1. The case had nothing to do with fires or theaters. The quote was Holmes giving a general statement that has no actual bearing on the case or precedential value in court ("dicta" in the legalgeek speak).
  2. The case is, to this day, considered one of the more odious and regretful decisions by the Supreme Court, in which they locked up a member of the Socialist Party for distributing incredibly tame pamphlets to give to prospective draftees about their rights during World War I.
  3. The case was later effectively (though not explicitly) overturned by Brandenburg v. Ohio and the ruling in the case itself is no longer binding caselaw anyway.
  4. Holmes himself, very soon after this decision, issued another decision that argued quite differently in Abrams v. United States, where he made the much more reasonable and useful argument:
    "The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
As Ken White argues in his piece:
Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech.
It's been misused for far too long, and I agree that it's time it stopped.


Reader Comments (rss)

(Flattened / Threaded)

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    John Fenderson (profile), Nov 6th, 2012 @ 9:08am

    Thank you

    Thank you, Mike. This has long been a pet peeve of mine.

    I think it perpetuates because there is a kernel of truth embedded in it (as is the case with the best myths and misnomers).

    The kernel of truth is this: it is not permissible to engage in speech that is intended or will clearly result in immediate risk of physical harm to people. The words "immediate" and "physical harm" are important there.

    As an interesting aside, there have been at least two sociological studies that show that literally yelling "fire" in a crowded theater does not result in the panic that people envision it does.

     

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    Anonymous Coward, Nov 6th, 2012 @ 9:13am

    but you wouldnt shout fire in a crowded theater, unless the theater was on fire, then you would.

     

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    Zakida Paul (profile), Nov 6th, 2012 @ 9:17am

    Confused

    Who the fuck shouts fire anywhere (never mind a theater) when there is no fire?

     

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    Rikardo Simmon, Nov 6th, 2012 @ 9:28am

    What if you ran into a crowded theater and instead of screaming about a fire, screamed about a masked gunman shooting people?

     

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    Anonymous Coward, Nov 6th, 2012 @ 9:31am

    It's been misused for far too long, and I agree that it's time it stopped.

    It's not being misused. It stands for the proposition that freedom of speech is not absolute, and laws can indeed limit freedom of speech.

    The fact that the "clear and present danger" test put forth by the unanimous Court in Schenck has changed over the years is irrelevant since the FACT REMAINS that you still can't yell fire in a crowded movie theater. Why? Because the freedom of speech is still not absolute.

    I know you think that "no law" leaves no wiggle room, but the fact remains that "abridging the freedom of speech" does. A law against yelling fire in a crowded theater doesn't abridge freedom of speech.

    Nice try but people using the phrase today are using it correctly, just as Justice Holmes did. All it means that freedom of speech is not absolute. Period.

     

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      John Fenderson (profile), Nov 6th, 2012 @ 9:40am

      Re:

      All it means that freedom of speech is not absolute. Period.


      Then just say that.

      The phrase is typically used as an example of the limits of free speech -- and as such, it fails. It is not such an example.

      A better example would be that if you are in front of an irate crowd, you can't yell instructions for them to "kill the bastards".

       

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        Michael, Nov 6th, 2012 @ 9:42am

        Re: Re:

        "A better example would be that if you are in front of an irate crowd, you can't yell instructions for them to "kill the bastards"."

        That totally ruins my plans for Black Friday.

         

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        Anonymous Coward, Nov 6th, 2012 @ 10:05am

        Re: Re:

        The phrase is typically used as an example of the limits of free speech -- and as such, it fails. It is not such an example.

        Freedom of speech is not absolute, as evidenced by the fact that you can't yell fire in a theater and cause a panic. It's a perfect example of the principal, so I don't get your point.

         

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          John Fenderson (profile), Nov 6th, 2012 @ 10:15am

          Re: Re: Re:

          Except, of course, that you generally can legally yell "fire" in a crowded theater.

           

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          Not an Electronic Rodent (profile), Nov 6th, 2012 @ 10:19am

          Re: Re: Re:

          It's a perfect example of the principal, so I don't get your point.
          For someone usually so obtusely picky about exact wording you seem to have a blind spot on this one...
          as evidenced by the fact that you can't yell fire in a theater and cause a panic (emphasis added)
          The quote doesn't mention panic at all. Absent that the quote is rather less accurate wouldn't you say?

           

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        dennis deems, Nov 6th, 2012 @ 11:49am

        Re: Re:

        I don't think it's meant to be an example so much as a metaphor, or an archetype.

         

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      Michael, Nov 6th, 2012 @ 9:40am

      Re:

      "the FACT REMAINS that you still can't yell fire in a crowded movie theater"

      Why not? Do you live in a state with a law against yelling fire in theaters? This specific action is likely not going to end in you being imprisoned or fined. As noted above, studies have been done that indicate that doing this will not put anyone in imminent harm. Knowing this would be a pretty good defense - even if someone was actually hurt.


      "A law against yelling fire in a crowded theater doesn't abridge freedom of speech"

      And yet, no such law actually exists (not in Connecticut, at least). So saying: "you cannot yell fire in a crowded theater" has little support from actual law behind it.

       

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        Anonymous Coward, Nov 6th, 2012 @ 10:03am

        Re: Re:

        So you think it's legal to intentionally cause a panic in Connecticut? LOL!

         

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          Michael, Nov 6th, 2012 @ 10:08am

          Re: Re: Re:

          I am saying that evidence suggests that yelling 'fire' in a theater is unlikely to cause a panic.

          Since there is no law specifically saying you cannot yell 'fire' in a theater, doing so it unlikely to result in you being found guilty of a crime.

          I challenge you to find the law that yelling 'fire' in a theater breaks. If you do, please post it.

           

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            Anonymous Coward, Nov 6th, 2012 @ 10:12am

            Re: Re: Re: Re:

            Of course the law doesn't say "you can't yell fire." It says something like "you can't cause a public disturbance." And you can't. The First Amendment does not protect you, which is the whole point of the phrase.

             

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              Michael, Nov 6th, 2012 @ 10:19am

              Re: Re: Re: Re: Re:

              I cannot find the "you can't cause a public disturbance" law in my library here either. Do you have any additional information on it? I'm looking at CT law - are you talking about a federal "you can't cause a public disturbance" law?

              Specifics, please.

              I have a local noise ordinance listed, but I don't think I can yell that loud.

               

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                Anonymous Coward, Nov 6th, 2012 @ 10:37am

                Re: Re: Re: Re: Re: Re:

                 

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                  Anonymous Coward, Nov 6th, 2012 @ 10:56am

                  Re: Re: Re: Re: Re: Re: Re:

                  That doesn't limit free speech at all, and it doesn't say its illegal to yell fire. It is, in fact perfectly legal to yell fire.

                  So no, the "yelling fire in a crowded theater" is bullshit, there is no such law since it would be unconstitutional.

                   

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                  G Thompson (profile), Nov 6th, 2012 @ 6:33pm

                  Re: Re: Re: Re: Re: Re: Re:

                  Wow.. I think you need to go back to "reading legislation for Dummies 101" class and get your money back

                  lets look at the elements of the "infraction" shall we

                  Sec. 53a-181a. Creating a public disturbance:

                  (a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.


                  Firstly you need INTENT.. you know the mens rae of actually specifically meaning to cause something to occur.

                  secondly your action(s) need to cause: inconvenience OR annoyance OR alarm OR recklessly creating a risk, in some person

                  thirdly we come to the specificity of what the actual intentional action must of been done via
                  (1) engages in fighting or in violent, tumultuous or threatening behavior; or
                  (2) annoys or interferes with another person by offensive conduct; or
                  (3) makes unreasonable noise.


                  So we need to have intent + inconvenience (or other highly subjective effects) + a choice of 3 specific scenarios before any infraction can be chargeable.

                  Sadly yelling fire in a theatre might fall under "unreasonable noise" but the intent of the person to utter that "noise" would not be to cause any of the subjective elemental effects but instead to give information to make people aware of imminent danger.

                   

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                    Anonymous Coward, Nov 6th, 2012 @ 7:14pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Yes, that statute has an intent element. Most criminal statutes do. What's your point?

                     

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                      G Thompson (profile), Nov 6th, 2012 @ 9:42pm

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      My point is twofold...

                      1. That statute has NOTHING to do with abridging speech or of disallowing anyone to yell fire in a crowded theatre (or anywhere else for that matter)

                      2. You have no idea what you are talking about, just that you think you do.

                       

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                      btr1701 (profile), Nov 7th, 2012 @ 11:45am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      > Yes, that statute has an
                      > intent element. Most criminal
                      > statutes do. What's your point?

                      The point is that speech can't be outlawed merely because it might disturb or annoy people.

                       

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                        Anonymous Coward, Nov 7th, 2012 @ 3:46pm

                        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

                        The point is that speech can't be outlawed merely because it might disturb or annoy people.

                        And the "yell fire" example exemplifies that, since there's more to it than simply annoying people. Again, what's your point?

                         

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              John Fenderson (profile), Nov 6th, 2012 @ 10:40am

              Re: Re: Re: Re: Re:

              Laws against causing a public disturbance are a bit different than laws prohibiting certain kinds of speech, although there can be overlap there.

               

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                Anonymous Coward, Nov 6th, 2012 @ 11:00am

                Re: Re: Re: Re: Re: Re:

                But it doesn't matter, the government can't have laws to limit speech of any kind. If such laws are on the books, they are entirely unconstitutional.

                 

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                  Anonymous Coward, Nov 6th, 2012 @ 12:16pm

                  Re: Re: Re: Re: Re: Re: Re:

                  ROFLMAO! Really? You need to put down the bong and read up on First Amendment limitations. I cited you this: http://law.justia.com/codes/connecticut/2005/title53a/sec53a-181a.html It is a law that explicitly limits speech. The Supreme Court has recognized and condoned many, many limits on speech as being constitutional. Welcome to planet earth, you've obviously not been here long.

                   

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                    Anonymous Coward, Nov 6th, 2012 @ 10:20pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Except the linked text does not support your assertion. Just because you say it is so does not make it so.

                     

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                  John Fenderson (profile), Nov 6th, 2012 @ 4:09pm

                  Re: Re: Re: Re: Re: Re: Re:

                  That's not actually true.

                  Many (all?) constitutional rights can be exercised in a way that impinges on other constitutional rights. When this happens, the law is the mechanism by which we as a society decide how to balance the two. In the course of balancing them, one or the other (often both) rights become limited in scope.

                  This is inevitable. No constitutional right trumps another, and so no constitutional right is absolute.

                   

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            out_of_the_blue, Nov 6th, 2012 @ 10:19am

            Re: Re: Re: Re: Common law applies.

            You're arguing from mere statute. In the stated conditions of falsely yelling fire in a crowded theater, with the implicit endangerment of people rushing to get out, then I guarantee that a jury of your peers (actually likely older and wiser people) will find you liable for any and all injuries plus loss of theater revenue and the expense of fire truck and police -- and the latter will find a statute to charge you with, they do that all the time.

            Legalisms. All we get here are weenie legalisms, purpose of which is to undermine common sense.

             

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              Anonymous Coward, Nov 6th, 2012 @ 12:11pm

              Re: Re: Re: Re: Re: Common law applies.

              Yeah, we're arguing from the actual law and not the sensibilities of old cranky people who are too stupid to get out of jury duty.

               

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              G Thompson (profile), Nov 6th, 2012 @ 11:00pm

              Re: Re: Re: Re: Re: Common law applies.

              Legalisms. All we get here are weenie legalisms, purpose of which is to undermine common sense.

              Bwahahahahahahahaha hahahahaha hahahahah ahhahahaha

              No really... you are talking about undermining Common Sense

              Bwahahahahahahaha

              +1zillion Internet funny points to you

               

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          Not an Electronic Rodent (profile), Nov 6th, 2012 @ 10:14am

          Re: Re: Re:

          How about informing people that there is, in fact, a fire? The quote doesn't specify "when there's no fire". Would you still expect it to be illegal if it were true? Alternatively, would it still be illegal if the yelling of "Fire!" garnered the response "f*ck off loser" and no panic whatsoever?

           

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            Anonymous Coward, Nov 6th, 2012 @ 10:37am

            Re: Re: Re: Re:

            If there is a fire, you're a hero. If there's not, you're a criminal. Good catch.

             

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              Not an Electronic Rodent (profile), Nov 6th, 2012 @ 10:46am

              Re: Re: Re: Re: Re:

              Makes the quote rather ambiguous as a quasi-legal test then, don't you think? And if it turns out you're just a guy annoying people trying to listen rather than causing panic?

               

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              The Groove Tiger (profile), Nov 8th, 2012 @ 5:57am

              Re: Re: Re: Re: Re:

              So, judge says "you can't be a hero" then? Since you can't yell fire in a crowded theater.

               

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          Josh in CharlotteNC (profile), Nov 6th, 2012 @ 1:22pm

          Re: Re: Re:

          So you think it's legal to intentionally cause a panic in Connecticut? LOL!

          Are you claiming that it is illegal to intentionally cause a panic over something you know not to be true?

          I can think of a few things that would cover. Panic of terrorists carrying more than 3 ounces of liquid onto planes. Panic over job losses due to copyright infringement. Panic over cyber-bullying/attacks/crime/anything.

          Any of those sound familiar?

           

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      Anonymous Coward, Nov 6th, 2012 @ 1:20pm

      Re:

      Nothing is absolute, but freedom of speech is the foundation of a free society and its exceptions should be few and far between, reserved only for the most egregious of the faults that can't possibly bring enough good from it.

      Also screaming fire in a theater can put people in harms ways, but then again it may not when was the last time you saw anybody get harmed by such pranks?

      I don't recall any instance of ever happening in my life, I never heard, read or saw something like that and that is not to say that it never happened, but it happens so rarely that laws against it that erode the principal freedom of speech should never be allowed because there is no such a problem that needs a law to fix it and even if that was the case the law should be temporary so it goes away when it is no longer needed.

      Unless of course you don't believe freedom of speech is important and can be taken away.

       

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      Mike Masnick (profile), Nov 6th, 2012 @ 1:50pm

      Re:

      It's not being misused.

      Will you not admit that it is widely used in situations where someone seeks to increase limitations on the 1st Amendment where they currently don't exist? Thus, it is, in fact, regularly misused as a tool to try to increase censorship.

      That you would defend such policies is, well, not surprising, but symptomatic of the problem being discussed.

       

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        Anonymous Coward, Nov 6th, 2012 @ 3:50pm

        Re: Re:

        Will you not admit that it is widely used in situations where someone seeks to increase limitations on the 1st Amendment where they currently don't exist? Thus, it is, in fact, regularly misused as a tool to try to increase censorship.

        That you would defend such policies is, well, not surprising, but symptomatic of the problem being discussed.


        Point me to a situation where that's happening and I'll take a look. I'm not aware of anyone arguing that censorship (actual censorship, as the First Amendment was ratified to defend against, not the ridiculously over broad version you subscribe to) is OK because some other speech restrictions (like against yelling fire in a theater) are constitutional. I honestly don't know what you mean, and it sounds like straw man FUD to me.

         

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          John Fenderson (profile), Nov 6th, 2012 @ 4:12pm

          Re: Re: Re:

          That's funny, because in my experience the vast majority of the time someone trots out the "fire in a crowded theater" line, they're doing so because they want to restrict speech that most people would find constitutional.

           

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          Karl (profile), Nov 6th, 2012 @ 6:05pm

          Re: Re: Re:

          Point me to a situation where that's happening and I'll take a look.

          Or you could just, y'know, look at the stories that the article linked to.

          There are several examples of the "Heckler's Veto:"
          In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."

          [...] "Innocence of Muslims," the film whose video trailer indirectly led to the death of U.S. Ambassador J. Christopher Stevens among others, is not, arguably, free speech protected under the U.S. Constitution and the values it enshrines. [...] While many 1st Amendment scholars defend the right of the filmmakers to produce this film, arguing that the ensuing violence was not sufficiently imminent, I spoke to several experts who said the trailer may well fall outside constitutional guarantees of free speech. [...] But words don't have to urge people to commit violence in order to be subject to limits, says [Anthony] Lewis. "If the result is violence, and that violence was intended, then it meets the standard."
          - Does 'Innocence of Muslims' meet the free-speech test?
          "There is obviously freedom of expression in this country. There is also a 100-year-old law by the United States Supreme Court which says you can't cry fire in a crowded theater," said [Christine] Amanpour. "So, now one has to figure out the extremists in this country and the extremists out there who are using this and whipping up hatred."

          "What's happening here is deliberate provocation at a transitional time,' Amanpour continued. [...]

          "We know there are limits to free speech, the classic being you can't yell fire in a movie theater," said [Amanpour's husband, James] Rubin. "So figuring out how hateful speech is treated by our government, so people around the world don't see, in an unsophisticated way, something coming out in America and thinking 'well the U.S. government could have stopped that' when we can't stop that."
          - Christiane Amanpour Implies 'Extremists In This Country' Inspired Murderous Riots In N. Africa
          Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on "GMA" that he's not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.

          "Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told me. "Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?"
          - Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?'

          ...or of charging speakers with "dangerous" speech because they're "smug:"
          New York City Councilman Peter Vallone told BuzzFeed Tuesday that he's asked the Manhattan DA's office to look into charges against a Twitter user, Shashank Tripathi, who spread misinformation during Hurricane Sandy. [...]

          "Everyone knows the example of yelling fire in a crowded movie theater," Vallone said. [...]

          "I hope the fact that I'm asking for criminal charges to be seriously considered will make him much less comfortable and much less smug," Vallone said.
          - Councilman Pushes For Charges Against Twitter User Who Spread Falsehoods

          ...or of overturning the Pentagon Papers case:
          As for the First Amendment, the Supreme Court has held that its protections of free speech and freedom of the press are not a green light to abandon the protection of our vital national interests. Just as the First Amendment is not a license to yell "Fire!" in a crowded theater, it is also not a license to jeopardize national security.
          - Dianne Feinstein: Prosecute Assange Under the Espionage Act

          These are flat-out arguments for censorship.

          Those are just the ones linked in the articles above. If you Google, you can find plenty of people who use that phrase to support censorship. In fact, if you look at any argument for censorship in America, and I'll bet that the person who argued for it has used that phrase as justification.

           

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            Anonymous Coward, Nov 6th, 2012 @ 7:13pm

            Re: Re: Re: Re:

            I still don't see it. Those are uses of the phrase to point out that free speech isn't absolute. So they're using it correctly to indicate the fact that many laws limit speech, such as laws against public disturbances, fighting words, nuclear secrets, etc.

             

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              Karl (profile), Nov 7th, 2012 @ 12:16am

              Re: Re: Re: Re: Re:

              I still don't see it.

              Well, that's not exactly surprising, since you seem to have no love for the First Amendment.

              Those are uses of the phrase to point out that free speech isn't absolute.

              No, they are not arguing that free speech isn't absolute. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as shouting 'Fire', so doesn't deserve to be called free speech at all."

              The arguments are that government intervention on the human rights of free speech are justified, solely because that right interferes with "Situation X." Situation X being something that is chosen to push emotional buttons.

              It is nothing other than an argument for censorship. It is presenting the case that censoring that speech is lawful censorship, thus "OK." (And, of course, nobody ever would believe that "this case" applies to other cases, which we hard-blooded censorship-loving Americans choose to support).

              Also, if they were merely pointing out that free speech is not "absolute," there would be no controversy. That is not the argument that any of the quoted people are making. It is a straw man.

              Quite obviously, those who bring this up, are almost certainly arguing for government censorship. Hopefully those people will at least learn to tell the truth.

               

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              Karl (profile), Nov 7th, 2012 @ 5:37am

              Re: Re: Re: Re: Re:

              I still don't see it.

              Well, that's not exactly surprising, since you seem to have no love for the First Amendment.

              Those are uses of the phrase to point out that free speech isn't absolute.

              No, they are not. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as screaming 'Fire,' so doesn't deserve to be protected by the First Amendment."

               

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                Anonymous Coward, Nov 7th, 2012 @ 6:08am

                Re: Re: Re: Re: Re: Re:

                Well, that's not exactly surprising, since you seem to have no love for the First Amendment.

                I have plenty of love for it, and I've been studying it formally. Unlike you, I know that when it was ratified, it covered only speech. It wasn't until later that it was expanded to cover expressive conduct. And unlike you, I don't go around calling everything "censorship," expanding the meaning so much that it covers just about everything.

                 

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                  Anonymous Coward, Nov 7th, 2012 @ 7:02am

                  Re: Re: Re: Re: Re: Re: Re:

                  I know that when it was ratified, it covered only speech. It wasn't until later that it was expanded to cover expressive conduct.


                  Symbolic Expression and the Original Meaning of the First Amendment” by Eugene Volokh, Georgetown Law Journal
                  This Article argues that the Court has had it right all along and that the Court’s critics are mistaken on originalist grounds. The equivalence of symbolic expression and verbal expression is consistent with the First Amendment’s original meaning. . . .

                  In fact, the first American court decision striking down a government action on free speech or free press grounds (in 1839) treated symbolic expression and verbal expression as interchangeable.

                  (Footnotes omitted)

                  The 1839 case is Brandreth v. Lance, 8 Paige Ch. 24 (N.Y. Ch. 1839).

                   

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                    Anonymous Coward, Nov 7th, 2012 @ 7:35am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    And Volokh cites many academics who think otherwise. The First Amendment protects all sorts of things today that were not even conceived of when it was ratified, and many protections that we take for granted today were not nearly so obvious just decades ago.

                    For example, the Supreme Court at first even said motion pictures were not protected by the First Amendment:
                    It cannot be put out of view that the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio Constitution, we think, as part of the press of the country, or as organs of public opinion.
                    Mutual Film Corp. v. Indus. Comm'n of Ohio, 236 U.S. 230, 244 (1915).

                    Of course, at that time, the Court did not think that the federal First Amendment even applied to the states. Thereafter, the Court greatly expanded the scope of the First Amendment, finding it was incorporated against the states under 14th Amendment Due Process.

                    37 years after Mutual Film, the Court changed its mind about motion pictures, finding them now protected by the First Amendment:
                    It is urged that motion pictures do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit. We cannot agree. That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment. We fail to see why operation for profit should have any different effect in the case of motion pictures. ***

                    For the foregoing reasons, we conclude that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments. To the extent that language in the opinion in Mutual Film Corp. v. Industrial Comm., supra, is out of harmony with the views here set forth, we no longer adhere to it.
                    Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952).

                    Things are greatly different now than they were back then.

                     

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                  btr1701 (profile), Nov 7th, 2012 @ 11:55am

                  Re: Re: Re: Re: Re: Re: Re:

                  > Unlike you, I know that when it
                  > was ratified, it covered only speech.
                  > It wasn't until later that it was
                  > expanded to cover expressive conduct.
                  > And unlike you, I don't go around
                  > calling everything "censorship,"
                  > expanding the meaning so much that
                  > it covers just about everything.

                  So now suddenly you're Mr. Strict Constructionist when it suits you, yet earlier you were arguing that there's wiggle room for interpreting 'no law'.

                  Amazing.

                   

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                    Anonymous Coward, Nov 7th, 2012 @ 3:44pm

                    Re: Re: Re: Re: Re: Re: Re: Re:


                    So now suddenly you're Mr. Strict Constructionist when it suits you, yet earlier you were arguing that there's wiggle room for interpreting 'no law'.

                    Amazing.


                    Wrong on so many levels, as per usual. My point was it's true that no law can abridge freedom of speech, but what that means turns on how you define abridge and freedom of speech. If someone argues "It says 'no law,'" the response is, "Yeah, so?" That's a descriptive comment, since I'm describing the actual law. Same goes for my comment about the scope of the First Amendment rights expanding over time. I'm describing a historical fact, not offering an argument as to which interpretative model is best for constitutional construction. Amazing that a lawyer like you doesn't pick up on this stuff.

                     

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                  Karl (profile), Nov 7th, 2012 @ 5:37pm

                  Re: Re: Re: Re: Re: Re: Re:

                  I have plenty of love for it, and I've been studying it formally. Unlike you, I know that when it was ratified, it covered only speech. It wasn't until later that it was expanded to cover expressive conduct.

                  Yeah, I thought we'd had this conversation before...

                  You've been studying speech issues formally, I get that. I've been interested in speech issues for over twenty years - since the anti-pornography debates in the mid-80's, if not earlier, and I've been reading free speech case law all that time. I have a personal stake in free speech issues, as I produce art that is unpopular, as do other artists that I like.

                  So, I know what I'm talking about, and you're wrong, as you were in our previous discussion. The First Amendment was created specifically to disallow the government censorship of any viewpoint, no matter how it was expressed. There was no distinction made between speech and "expressive conduct," then or now. It's true that the First Amendment has been applied in situations that the Founders didn't consider; but they did not consider that the government would ever attempt to suppress speech in those situations, either. And expression was seen by the Founders as a natural (inalienable) right; something that no just government had a right to interfere with.

                  Oliver Wendell Holmes was explicitly disavowing the "natural rights" view of free speech when he decided Schenck. This is not a surprise, as he didn't believe in natural rights at all:
                  There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural law. [...]

                  I used to say when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct insofar as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view. If ... the truth may be defined as the system of my (intellectual) limitations, what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can't Helps. If I think that I am sitting at a table I find that the other persons present agree with me; so if I say that the sum of the angles of a triangle is equal to two right angles. If I am in a minority of one they send for a doctor or lock me up; and I am so far able to transcend the to me convincing testimony of my sense or my reason as to recognize that if I am alone probably something is wrong with my works. [...]

                  The jurists who believe in natural law seem to me to be in that naïve state of mind that accepts what has been familiar and accepted by all men everywhere.

                  If the middle paragraph reminds you of the "2 + 2 = 5" speech from Orwell's 1984, you're not alone. Holmes did not believe in human rights at all; he believed that people's "rights" emanated from ideas that survived as the "fittest" to society. Note that Holmes also sanctioned forced sterilization, in Buck v. Bell:
                  We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

                  It may seem like a cheap shot to bring it up, but it is an example of Holmes' belief that the "public welfare" should trump human rights. And it is also an example of the consequences of this belief.

                  Thus Holmes, and the court in Schenck, contracted First Amendment protections; and, in fact, they had already been shrinking for quite some time before that (especially, and unsurprisingly, during the Civil War). It wasn't until the court returned to an "inalienable right" view of free speech that First Amendment jurisprudence started returning to what the Founders originally intended. And today, the Schenck case (along with Debs and Frohwerk) are considered shameful, part of the dark ages in the history of free speech, and fortunately long-overridden.

                  When people use the "fire in a crowded theater" quote, they are essentially arguing for a return to these dark ages, whether they are aware of it or not (and usually they are not).

                  And unlike you, I don't go around calling everything "censorship," expanding the meaning so much that it covers just about everything.

                  My definition of "censorship" is pretty much the same as the law's: the government suppression of expression.

                  I will admit that I have more of an absolutist view of the First Amendment than some other people - that any government regulation of speech is wrong, and that such regulations must protect human rights that are equally as fundamental. But this is a "bias" that I'm not even remotely ashamed of, and I think everyone should have it.

                  Some censorship may necessary, and may not run afoul of the First Amendment. But that doesn't mean it's not censorship, just that it's not unconstitutional censorship.

                  And that is - without question - what the people I quoted are arguing. They are arguing for censorhip, by arguing that it's not unconstitutional censorship. Which is pretty much the same argument that all people make when they want to censor something. And they usually quote Holmes when they do it.

                  I'm willing to bet you've made such an argument yourself...

                   

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      btr1701 (profile), Nov 7th, 2012 @ 11:31am

      Re:

      > I know you think that "no law"
      > leaves no wiggle room,

      Not just us, the Founders thought that as well. Little did they know that no matter how specific and simple to understand they made it, there'd be people like you who would find a way to make 'no law' mean something other than 'no law'.

       

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        Anonymous Coward, Nov 7th, 2012 @ 3:49pm

        Re: Re:

        Not just us, the Founders thought that as well. Little did they know that no matter how specific and simple to understand they made it, there'd be people like you who would find a way to make 'no law' mean something other than 'no law'.

        And my point, which you never seem to catch, brilliant attorney that you are, was that while some might argue that the First Amendment is absolute because it says "no law," that doesn't mean that there's not lots of wiggle room in the Amendment. That wiggle room has been used to expand its meaning. Heck, it says it only applies to "Congress," ("Congress shall make no law") but today the Court says that the 14th Amendment Due Process Clause means that it applies to the states as well. Why? Because they said so.

         

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    Anonymous Coward, Nov 6th, 2012 @ 9:59am

    Historical Example

    A response to use against people who deploy this argument:

    "Then why wasn't the perpetrator of the Italian Hall disaster ever prosecuted?"

    http://en.wikipedia.org/wiki/Italian_Hall_disaster

     

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    Jake, Nov 6th, 2012 @ 10:04am

    Agreed. I prefer "Careless talk costs lives"; it gets the same message across in fewer words and isn't so clichéd.

    Which is not to say I'm in favour of new laws regulating speech on the Internet, mind you; we already have laws against soliciting murder, inciting riots and (in the US) reckless endangerment that have been working just fine for decades.

     

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    Lord Binky, Nov 6th, 2012 @ 10:24am

    I suggest we start using the phrase '_____ on an Airplane' instead of 'Fire in a crowded theater'.


    This has nothing to do with a desire to see people who use these phrases get put on a watchlist.

     

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    I Need More Allowance, Nov 6th, 2012 @ 10:58am

    Thanks!

    I will use this when someone tries to take that argument and use it against the right to keep and bear arms. Same points, slightly different end goal.

     

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    Ferel (profile), Nov 6th, 2012 @ 1:35pm

    Things I did today:

    1. Read the article and links therein
    2. See comments from Anon#18
    3. the_fuck_am_i_reading.jpg
    4. Ask where the hell humanity went wrong
    5. ACHIEVEMENT UNLOCKED: "I Don't Want To Live On This Planet Anymore"

     

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    Forest_GS (profile), Nov 6th, 2012 @ 2:03pm

    They started the fire!

    In this day and age, buildings that are made to hold lots of people have very good fire safety systems. Chances are you'll hear the fire alarm long before anyone actually sees the fire.

    Unless of course, that person that yells Fire set the fire in the first place, to clear the place out.

     

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    PavePusher, Nov 6th, 2012 @ 5:53pm

    The Hell You Say

    Freedom of Speech IS absolute. I can say any damn thing I want, at any time and any place.

    And, if found guilty of careless or intentful malicious harm after the fact, held responsible for the consequences.

    Such is Freedom.

     

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    Lord Binky, Nov 7th, 2012 @ 9:06am

    What if yell Theater in a crowded fire?

     

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    BenE, Mar 15th, 2013 @ 12:43pm

    Here is a real world example of speech not being absolute.

    You might have the right to say whatever you want but not without consequences:

    http://www.azcentral.com/community/scottsdale/articles/20111216scottsdale-doctors-w in-lawsuit.html

    Summary:
    - Scottsdale doctors awarded $12 million in defamation case
    - Singer had defamed Scottsdale plastic surgeon on website

     

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    John Kuhlman, Mar 4th, 2014 @ 3:53am

    privacy

    The more people crowded into a given space, less privacy one has. A hermit living in a cave in the Organ Mountains had a great deal of Privacy. People living in the Internet age have much less privacy.

     

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