Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

from the fire-in-a-theater dept

It keeps coming up, the all-too-common, and all-too-erroneous, trope that "you can't shout fire in a crowded theater." And it shouldn't, because, as a statement of law, it is completely wrong. It's wrong like saying it's legal to rob a bank. Or, perhaps more aptly, it's wrong like saying it's illegal to wear white after Labor Day. Of course such a thing is not illegal. It's a completely made-up rule and not in any way a reflection of what the law on expression actually is, or ever was. And it's not without consequence that so many people nevertheless mistakenly believe it to be the law, and in so thinking use this misapprehension as a basis to ignore, or even undermine, the otherwise robust protection for speech the First Amendment is supposed to afford.

This post therefore intends to do two things: explain in greater detail why it is an incorrect statement of law, and also how incorrectly citing it as the law inherently poisons any discussion about regulating online speech by giving the idea of such regulation the appearance of more merit than the Constitution would actually permit. Because if it were true that no one could speak this way, then a lot of the proposed regulation for online speech would tend to make more sense and also raise many fewer constitutional issues, because if it were in fact constitutional to put these sorts of limits on speech, then why not have some of these other proposed limits too.

But the "fire in a crowded theater" trope is an unsound foundation upon which to base any attempt to regulate online speech because it most certainly is NOT constitutional to put these sorts of limits on speech, and for good reason. To understand why, it may help to understand where the idea came from to end up in the public vernacular in the first place.

Its origins date back to a little over a century ago when the Supreme Court was wrestling with several cases involving defendants having said things against government policy. In particular, President Wilson wanted the United States to enter what eventually became known as World War I, and he wanted to institute the draft in order to have the military necessary to do it. He got his way and these decisions have become part of our history, but at the time they were incredibly contentious policies, and people spoke out against them. The government found this pushback extremely inconvenient for generating the public support it needed. So it sought to silence the loudest voices speaking against it by prosecuting them for their messages.

In the case of Schenck v. U.S., the defendants had been distributing flyers encouraging young men to resist being drafted. Yes, maybe sometimes you could say such things, the Court decided in upholding their convictions, but sometimes circumstances were such that such expression was no longer permissible. And the standard the Court used for deciding whether it was permissible or not was whether the speech presented a "clear and present danger."

But this was a decision that has since been repudiated by the Court. Even Justice Oliver Wendell Holmes, who himself had written the decision, soon came to believe that the standard he articulated in Schenck for what speech could be punished reached too much speech, and he said as much in his dissent in the subsequent Abrams v. U.S. case, which was another one where the defendants were being prosecuted for ostensibly interfering with the government's wartime policy.

Over time the rest of the Court joined him in the view that the First Amendment protected far more speech than its earlier decisions had allowed. Today the standard for what speech can be proscribed is the much narrower one articulated in Brandenburg v. Ohio, which said that speech can only be prosecuted if it is intended to incite "imminent lawless action" (read: a riot). It didn't mean provocative speech that might inflame feelings (even the speech of a KKK member was protected) but something far more precipitous. It is still left room for some speech to be unprotected, but this more restrained standard is much less likely to prohibit too much speech, as the standard from the Schenck decision had.

In the wake of this later jurisprudence limiting what speech can be punished we can today more easily see, in hindsight, how the Schenck decision let the government suppress way too much speech, which is why the courts have moved away from it. For instance, war, and even the draft, remain controversial issues, but we now expect to be able to speak against them. Moving away from Schenck has made it easier to intuitively understand that the public has the right, and must have the right, to speak against the powerful, including the government. Even if well-intentioned in its actions the government may nonetheless be wrong to do what it wants to do, and what if those intentions are not noble? The greater the impact of the action the government wants to take, the greater the need to be able to speak against it – and often the greater the government impulse to shut that speech down.

But what's key for this discussion here is that, despite the obvious error of the Schenck decision, people are still quoting a part of it as if it were still good law, as if it were EVER good law, and as if the part they are quoting did not itself perpetuate the same fundamental mistake of Schenck and put too much speech beyond the reach of First Amendment protection – which creates its own danger.

Because it was in the Schenck decision where Justice Holmes included the casual mention about not being able to shout fire in a crowded theater. It was a line that itself was only dicta – in other words, it was never actually a statement of law but rather a separate musing used to illustrate the point of law the decision was trying to articulate. It wasn't what the case was about, or a statement that was in any other way given the robust consideration it should have been due if it were to truly serve as a legal benchmark. After all, what if the theater was actually on fire? Would saying so be illegal? Ironically, the people getting the law wrong by citing this line also tend to cite it incorrectly, because what is often omitted from the trope is that Holmes suggested the problem would only arise by "falsely" shouting fire. But even if this criteria were to be part of the rule, might not such a rule deter people from shouting alarm even if the theater was actually burning? Justice Holmes slipped that single line in the decision as a truth, but it was one he had only just suddenly conjured out of whole cloth. Nowhere did he address the implications of such a rule, or what it would mean when history mistook it as one.

Because it is not the rule. It never was the rule. And it never, ever should be cited today as being the rule. From almost the moment it was judicially uttered it was already out of step with our understanding of what the First Amendment protects, and it has only gotten more and more detached as our understanding of the First Amendment's protection and purpose have gotten more precise. Modern jurisprudence has made clear that it is in only the rarest exception where freedom of speech can be impinged. It is therefore legally wrong to suggest otherwise, and even more legally ignorant to use this line to do it.

Perhaps more importantly, though, even if it were the rule, it shouldn't be. Even back in the day of firetrap theaters stuffed with flammable celluloid it was of dubious value as a rule proscribing speech because sometimes speech really needs to be said, and thus it is important – maybe even of critical importance – that such speech not be chilled. The same is no less true today. Indeed, the more contentious public discourse is, and the higher the stakes, the more important it is that everyone be free, and FEEL free, to express themselves. We can't have people too scared to speak against misuses of power because they might run afoul of someone deciding that certain ideas should not be said. Yet it's that fear of recrimination that often is what silences people more than any specific sanction. And it's that fear that deprives the public of any benefit of whatever they had to say.

Which is why our understanding of the First Amendment's protection has come to be far more broad and permissive than such a rule about crowded theaters would ever allow, because it is the only read of the Constitution that gives the First Amendment its true protective utility. When we speak of the law regarding free speech we speak of a law that understands it's better to have too much speech, including some that is valueless, than to risk losing the speech that has value. And it's a rule that applies just as much to speech online as off, as the Supreme Court also announced in Reno v. ACLU. All of our discussions about online speech should therefore start there, with that principle, and not around single throwaway lines from long discredited opinions that try to pretend that speech is ever so easily unprotected.

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Filed Under: 1st amendment, fire in a theater, free speech


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  • icon
    Thad (profile), 28 Oct 2021 @ 11:01am

    "as a rule prescribing speech" -- I think that should be proscribing.

    reply to this | link to this | view in chronology ]

  • identicon
    kog999, 28 Oct 2021 @ 11:20am

    slippery slope

    i think this shows that slippery slope isn't as much of a logically fallacy as people think. although shouting fire might not be against the law many people think it is and they use that to justify silencing other speech. even speech that doesn't cause a panic like shouting fire might. that's how freedoms are lost inch by inch.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 28 Oct 2021 @ 11:22am

    Ms. Gellis,

    "Or, perhaps more aptly, it's wrong like saying it's illegal to wear white after Labor Day. Of course such a thing is not illegal."

    I suggest you steer clear of the South and the Kappa Kappa Gamma's, wearing white after Labor Day IS a capitol crime to them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2021 @ 11:44am

    What about conspiracy?

    You can be convicted of, and punished for, conspiracy even if you commit no illegal acts whatsoever. Is this not a restriction of free speech?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Oct 2021 @ 12:03pm

    Any article calling out this absurd falsehood, used to sentence the poor to be forced over the wire into no-man's-land to die to be out of the way of their betters, is absolutely commendable. There are many cases of theater panics set off by people yelling "Fire!" - yet the prosecutions never happened, because the people would always just say they smelled smoke, or someone else yelled Fire! first.

    The same lying excuse for the same awful Espionage Act that was used against a presidential candidate to destroy democracy in 1917 and leave the Klan in charge, and used to destroy democracy today by jailing Assange and who knows how many reporters who collaborated with him in order to leave the CIA in charge.

    reply to this | link to this | view in chronology ]

  • icon
    BernardoVerda (profile), 28 Oct 2021 @ 12:05pm

    This argument tends to remind me

    ... of all the times people get hung up on whether the USA is a democracy or a republic, or whether frogs will placidly allow themselves to be boiled alive, if only the temperature is raised gradually enough.

    I'd suggest that most people, when using the expression that "one can't shout 'Fire!' in a crowded theatre", are not actually talking about American case law or the minutia of American legal history, but appealing to an argument that malicious or reckless speech can be dangerous and might merit legal consequences -- and the actual, specific, historical origin of the expression is generally irrelevant to the point being made.

    I think that perhaps this is why the expression keeps cropping up, and why the inevitable "corrections" keep getting ignored and forgotten yet again -- the correction may be absolutely "true", but it's usually also quite beside the point.

    reply to this | link to this | view in chronology ]

    • icon
      Cathy Gellis (profile), 28 Oct 2021 @ 12:15pm

      Re: This argument tends to remind me

      I get your point but don't agree that it's just a pedantic distinction. I don't think people cite the trope out of a general sense that perhaps certain speech SHOULD trigger some sort of consequence; I think they cite it because they think it DOES. And because they think it does, they can't understand why we can't just have some more regulation to punish other bad speech they think is similar.

      And so the regulatory conversation is not one about whether that should be that rule, but a more ignorant tug-of-war between those who think such regulation is absolutely already legally on the table and those who better understand the actual reality that it's not. Which means we can never have a useful conversation about what the regulation should be since we're not all on the same page about how much would need to change to get there (and also why that much change would likely be bad).

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 2 Nov 2021 @ 6:18am

        Re: Re: This argument tends to remind me

        "I think they cite it because they think it DOES."

        No need to "think". The evidence is in on that, as amply demonstrated every damn time someone criticized Bush, Cheney or Trump...usually with a backhanded implication that if people were stopped from spouting hate speech in private premises surely someone ought to stop the god damn libs from lying about Dear Leader...

        reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 28 Oct 2021 @ 1:01pm

      Re: This argument tends to remind me

      I'd suggest that most people, when using the expression that "one can't shout 'Fire!' in a crowded theatre", are not actually talking about American case law or the minutia of American legal history, but appealing to an argument that malicious or reckless speech can be dangerous and might merit legal consequences

      But that's not an argument.

      "Some speech is illegal" is a true but meaningless observation. It does absolutely nothing to argue that the speech you're currently talking about is illegal.

      See Ken White's How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies, tropes two and three.

      reply to this | link to this | view in chronology ]

    • icon
      Ellie (profile), 28 Oct 2021 @ 9:23pm

      Re: This argument tends to remind me

      I'd suggest that most people, when referencing the phrase, "one can't shout 'Fire!' in a crowded theatre", are appealing to a colloquial expression that has no actual bearing on the letter of the law as it exists today and for the past hundred years.

      The "correction" does not keep getting ignored. Rather, it is upheld, and is very much the point of protected speech under the First Amendment. For example, I was listening to Chris Cuomo (the CNN guy) exchange heated words about the harm caused by hate speech. Chris Cuomo is an attorney. When pressed, he readily acknowledged that he considers hate speech to be immoral, but certainly NOT illegal.

      reply to this | link to this | view in chronology ]

    • icon
      mhajicek (profile), 29 Oct 2021 @ 9:17am

      Re: This argument tends to remind me

      Where I see it used (abused) most often, is people claiming that since you "can't yell 'fire' in a crowded theater", the government has the authority to arbitrarily restrict constitutional rights as it sees fit.

      reply to this | link to this | view in chronology ]

  • identicon
    Oliver the Greater, 28 Oct 2021 @ 12:40pm

    Bigger Picture

    ...well, the major point is that all 3 Federal branches were very successful at intentionally violating the 1st Amendment at the time.

    All were solemnly sworn to uphold the Constitution.
    This was not an isolated instance -- top personnel in the Federal government routinely violate the Bill of Rights & Constitution today.
    However, most Americans strongly favor some Federal Constitutional violations, provided the violations are for purposes they like.
    And most Americans have some pet Constitutional provisions they consider absolutely sacrosanct.

    For example (as standard Hot Button issues), modern Liberal Progressives love the 1st Amendment, but consider the 2nd Amendment a big mistake to be ignored at will.
    Modern Conservatives love the government War-on-Drugs & War-on-Terror, but are totally unconcerned by their wholesale violations of Amendments I thru X.

    But bottom line, Americans simply can not trust their government officials to protect their basic rights, even as stated in the plain text of the Bill of Rights.
    Power Politics rules all.

    reply to this | link to this | view in chronology ]

  • identicon
    David Brown, 28 Oct 2021 @ 2:13pm

    Does Techdirt have a TOR or onion address

    Looks like section 230 will probably change and being anonymous may be gone. For comment lines, will Techdirt open up a .onion webpage so even if they regulate section 230 the onion page will still allow us to comment online?

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Bilvin Spicklittle, 28 Oct 2021 @ 2:48pm

    I'm not sure that the feverish lust for muzzles of the would-be censors is anything the court can protect us from. We no longer live in a world where the government arrests us for handing out flyers in a plaza... most human speech no longer lives there. One can make the argument that no important human speech occurs in such a venue anymore.

    And where it does occur, no protections are left. The whims of the "property owner" are all that stand between speech and those who would silence it, but those property owners aren't even people. Just soulless, faceless corporations much too easy to manipulate for the activists and hecklers who wish to do such. After all, anything that doesn't hurt the bottom line is a-ok with these organizations. And if they silence some opinion you don't agree with (or even one that you do), how can that possibly hurt their bottom line?

    The First Amendment is obsolete, and that remains true no matter the formulation of some archaic ruling from another century or whether jackasses try to invoke it to justify the violation of civil rights.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 28 Oct 2021 @ 4:16pm

      Re:

      Why do you hate free speech so much that you lie about it like that?

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Oct 2021 @ 12:21am

      Re:

      "The whims of the "property owner" are all that stand between speech and those who would silence it"

      When was that not the case? You could always be kicked out of a bar or a mall for being an obnoxious jackass with your speech.

      Either way it comes down to what it always has - you have a right to speak but you have never had the right to either an audience or to co-opt someone else' private property against their wishes to exercise that right. Use your own property to speak from, or find a community that doesn't find you offensive enough to ask you to leave.

      "The First Amendment is obsolete"

      Nothing you just said has the slightest thing to do with the First Amendment.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 29 Oct 2021 @ 7:24am

      Re:

      "The First Amendment is obsolete, and that remains true no matter the formulation of some archaic ruling from another century or whether jackasses try to invoke it to justify the violation of civil rights."

      And so you'd have the First Amendment utterly abolished so government could compel speech from private entities?

      Is that where your argument is going? Because if so, Koby...oh, apologies, Bilvin...then we've heard and debunked that argument many times long before.

      Because in any sane and rational world where the first amendment is used it's up to every person to set up and stand on their own soapbox. Feel free to voice the "alternative view" on Gab or Parler.

      But no one owes you an audience. And if the vast majority of people do not want certain people to speak on their premises then no law should exist which would force them to let those people speak on their premises.

      Guys, I think I spotted the next alt-right shill.

      reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Bilvin Spicklittle, 29 Oct 2021 @ 1:15pm

        Re: Re:

        I'd strengthen the first amendment, not "utterly abolish" it. Of course, the amendment can't be strengthened... we've reached an age where no further amendments to the Constitution will ever be put forth for ratification. Or, for that matter, even be seriously proposed in Congress.

        You'd already decided that you didn't like me, and seek to put words in my mouth. You might even be right, I doubt you and I would ever get along. Most of your ideology, opinions, and personality are garbage. That said, I'd rather live in a world where you could safely speak your garbage, than trust that those like me could ever hold power indefinitely to ensure that only your opinions would be censored and never our own.

        I'm left with the sad conclusion that either you're just confused enough that you'd rather wallow in divisiveness, or that you like things as they are now so much precisely because you believe your faction (or one that you favor) will remain in power indefinitely and thus you will be safe from censorship even while it muzzles me.

        Because in any sane and rational world where the first amendment is used it's up to every person to set up and stand on their own soapbox

        Ah. Yes, I will get right on putting up my own Facebook contender or my own Google Play store. That's surely a reasonable argument that you make.

        But no one owes you an audience.

        Indeed, no one does. The audience itself gets to decide to listen or not. We're talking about third parties who get to decide whether your audience even has the opportunity to listen to you though. If that's not obvious, then there is no helping you.

        reply to this | link to this | view in chronology ]

        • identicon
          Rocky, 29 Oct 2021 @ 3:40pm

          Re: Re: Re:

          I'd strengthen the first amendment, not "utterly abolish" it. Of course, the amendment can't be strengthened... we've reached an age where no further amendments to the Constitution will ever be put forth for ratification. Or, for that matter, even be seriously proposed in Congress.

          Strengthen it? How? Forced association? Forced speech?

          I'm left with the sad conclusion that either you're just confused enough that you'd rather wallow in divisiveness, or that you like things as they are now so much precisely because you believe your faction (or one that you favor) will remain in power indefinitely and thus you will be safe from censorship even while it muzzles me.

          So, how have you been muzzled? What opinion did you offer up for that to happen? Be specific.

          Ah. Yes, I will get right on putting up my own Facebook contender or my own Google Play store. That's surely a reasonable argument that you make.

          It's a far better argument than you are making, because the alternative is that private property rights and rights of association goes out the window. Funnily enough, there are a lot of people who actually manages to use social media, traditional media and the like to gather an audience without getting moderated or ignored. Why is that?

          We're talking about third parties who get to decide whether your audience even has the opportunity to listen to you though. If that's not obvious, then there is no helping you.

          It has always been that way if you rely on third parties to disseminate your speech. What you are arguing for is that the third party should have less rights and should be forced to associate with people and speech they don't like. You are free to point out when that was not the case to prove me wrong.

          Here's the thing: Most third parties, for example social media or a newspapers opinion section, doesn't give a flying fuck about what you actually write as long as you aren't an asshole writing assholery things.

          Declaring the the first amendment is obsolete shows that you don't actually understand it, especially since you think it's used to violate civil rights. The first amendment protects the civil rights, for everyone. Based on what you have posted it seems you think that some "third parties" shouldn't have first amendment rights, which taken to it's logical conclusion means that the constitution shouldn't apply equally to everyone and that is some scary shit for the simple reason who decides that?

          reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 30 Oct 2021 @ 5:19am

          Re: Re: Re:

          We're talking about third parties who get to decide whether your audience even has the opportunity to listen to you though.

          Wrong, we are talking about an audience who have decided that they prefer the moderation of a particular platform. There are other platforms like 4chan and 8kun etc. who seem to only attract a smaller audience because fewer people agree with their moderation policies.

          Why should a successful platform change its moderation polices to be in alignment with much less successful platforms? That seems like business suicide.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 30 Oct 2021 @ 10:31pm

            Re: Re: Re: Re:

            Wrong, we are talking about an audience who have decided that they prefer the moderation of a particular platform.

            Wrong. The parent was making generalized statement, you are making a statement about Techdirt specifically.

            There are other platforms like 4chan and 8kun etc. who seem to only attract a smaller audience because fewer people agree with their moderation policies.

            Citation Needed.

            According to Alexa, Techdirt has a global engagement rating of 18,685, an average page view of 2.2 pages per visitor, and an average daily engagement time of 2 minutes and 9 seconds per visitor. Whereas 4chan as a global engagement rating of 1,003, an average page view of 4.48 pages per visitor, and an average daily engagement time of 6 minutes and 2 seconds per visitor.

            Why should a successful platform change its moderation polices to be in alignment with much less successful platforms? That seems like business suicide.

            The needs of a business do not outweigh the public's need for communication. Further, you are falling for the "Social Media = the entire Internet" fallacy.

            There is a very important difference between Telecommunications services and Publishers: Where the primary content originates. With publishers, the publisher itself is the origin of the content. With telecommunications services, their subscribers / users are the origins of the content. The two origins are very different, and as such so should be the laws that govern them.

            A proper approach would be to allow moderation with publishers, while banning it on telecommunication services. This is what is done today with common carrier laws. In my opinion, those laws should be expanded to include Social Media companies, as their primary source of content is third parties. No-one goes to Facebook everyday to check up on Mark Zuckerberg, they go to check up on their friends and family. Consequently, people don't come to Techdirt to check up on friends, they come to read the articles posted by Techdirt's editors. As such Techdirt is not a "Social Media" company under my proposed legislation expansion. If Facebook has a problem with that distinction, they can quit providing telecommunications services. No one is forcing Facebook to provide those services using their property, they chose to do so.

            What you are advocating is a one size fits all approach that allows a Telecommunications service to deny third parties the ability to communicate with each other, so you as a publisher can ban conversations you disagree with under the same legal framework. Your solution is more harmful to society because of that failure to distinguish origins and apply the law appropriately for both cases.

            reply to this | link to this | view in chronology ]

            • icon
              Toom1275 (profile), 30 Oct 2021 @ 10:40pm

              Re: Re: Re: Re: Re:

              Your solution is more harmful to society because of that failure to distinguish origins and apply the law appropriately for both cases.

              [Asserts facts proven to be pure projection by halucinating social media qualifies as common carriers]

              reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 31 Oct 2021 @ 5:18am

              Re: Re: Re: Re: Re:

              A Telecommunication providers main business is connecting two end points as demanded by their users, and that applies to ISP's as well. That is basically a one to one service, which includes connecting you to Facebook.

              A publisher on the other hand decides what content will be made available to the public, and are highly selective of what submissions for publication they are offered are selected for publication. Where your only route to the public is via a publisher you will most likely not have a voice in public debate beyond those people that you speak to directly, or exchange letters with.

              A social media site is a club that allows people to self publish, so long as they play by the clubs rule and moderates the site by selectively, with greater or lessor accuracy removing or blocking submissions.

              Under you proposals, social media sites either become like 8kun, as the trolls, racists and other bigots drive most users away by subjecting the to continuous abuse, or they become sites where a few selected people have a voice, and the majority are turned into passive consumers. If you leave the Likes of Techdirt outside your policies, such sites will be swamped by off topic posts as people search for a place where they can communicate for a bit, at least until the troll and bigots discover where they are talking.

              Also note, being banned from Facebook, Twitter, and Youtube and other popular social media sites does not mean you have been silenced, as you still have access to the Internet and sites like 8Kun, Parler, Bitchute etc. You also have the option of starting your own blog.

              Finally, no law promises you a free to use publication service, indeed free speech and freedom of the (printing) press only guarantee that you can publish your own words at your own expense.

              What you are asking for is a system where a few people publish for many people to read, but with no interaction other than letters to the editor, or playgrounds for troll and bigots that drive other users away from the sites. What moderation of social media allows is for is sites to tailor their moderation practices to attract their chosen audiences. If a social media site tells you you are not welcome there, then you go and find a site where you are welcome. Demanding that Facebook etc must allow you to speak is demanding the right to force your views and opinions into conversation where they are not welcome, and often disruptive, indeed by making such demands you are making yourself look like an extremist determined to foist their biews onto the whole of society.

              reply to this | link to this | view in chronology ]

            • icon
              Tanner Andrews (profile), 1 Nov 2021 @ 5:40am

              Re: Re: Re: Re: Re:

              The needs of a business do not outweigh the public's need for communication

              You may be getting bad information. The needs of a business such as facebook, tweeter, gab, or trump.social most assuredly outweigh the public's need for communication.

              1. The public has ample alternative paths for communication. Even without being able to phone or stand on the corner with a sign, people can communicate without any specific service you could identify.

              2. If we do not weigh the business needs of these sites heavily enough to allow them to tailor their content to their audiences, they will not survive and will thus be unable to facilitate such communication as they currently facilitate.

              It follows that your assertion of public necessity fails.

              reply to this | link to this | view in chronology ]

            • icon
              Scary Devil Monastery (profile), 1 Nov 2021 @ 7:25am

              Re: Re: Re: Re: Re:

              "In my opinion, those laws should be expanded to include Social Media companies, as their primary source of content is third parties."

              Ah, so the bar owner either needs to shoulder the responsibility of what their patrons do in their pub or must ignore the behavior of the patrons in their pub?

              Know how we can tell exactly where you're coming from?

              Here's a hint. It doesn't matter how much wordwall you wrap around the turd sandwich because that logic won't get less broken no matter how well you package it. Because people on this site are largely literate and well used to trolls showing up trying to peddle false assumptions.

              "What you are advocating is a one size fits all approach that allows a Telecommunications service to deny third parties the ability to communicate with each other, so you as a publisher can ban conversations you disagree with under the same legal framework."

              Bullshit. Literally no one ever said that or anything to that effect. The only one conflating basic infrastructure with publishing would be the alt-right morons who keep pushing for a paradigm where allowing a property owner to set their own rules of behavior is illegal. telecommunications services are another deal entirely. A car is not a road.

              reply to this | link to this | view in chronology ]

        • icon
          Tanner Andrews (profile), 1 Nov 2021 @ 5:35am

          Re: Re: Re:

          third parties who get to decide whether your audience even has the opportunity to listen

          You may be confused. The problem is not third parties deciding on opportunities, but rather, authorities hoping to compel third parties to host your speech.

          I am disinclined to have certain politicians' signs in my yard, even as I have others there. I would resist mandated fairness requirements that I have the unwanted signs. Indeed, I have no intention of being fair, and it is my yard.

          I see no meaningful distinction when my yard is electronic.

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        • icon
          Scary Devil Monastery (profile), 1 Nov 2021 @ 7:15am

          Re: Re: Re:

          "You'd already decided that you didn't like me, and seek to put words in my mouth."

          No words I have to put in your mouth but the ones you already spat out of there, I'm afraid. I could give you the benefit of doubt - assume you didn't know what you argued for, but you doubling down on your assertions with troll rhetoric tells us all where you're from.

          "...and thus you will be safe from censorship even while it muzzles me."

          He said, obviously not being censored at all. Tell me, when you choose to troll a thread, do you check to see how jaded the residents are first? Because you're neither the first nor the hundredth to try that exact way to shut down any commenter who spots your bullshit.

          "Ah. Yes, I will get right on putting up my own Facebook contender or my own Google Play store. That's surely a reasonable argument that you make."

          It certainly is. You can do it today, quite easily.
          Oh, wait...you infer that you are owed an audience? No, that's not how it works. You can set your soapbox up. You can climb it. You can scream out your message. You don't get to demand the mall or bar owner is compelled to host you for that purpose. But that this is your argument once again tells us everything we need to know about where you're coming from.

          Google was built by two techies in a garage. Facebook was nothing before it usurped the place of its predecessor. They don't owe you a place to speak. They aren't obligated to change the rules so you can compel the unwilling to hear you out. That's not how free speech works - that's just the alt-right parody of "freeze peach".

          "The audience itself gets to decide to listen or not. We're talking about third parties who get to decide whether your audience even has the opportunity to listen to you though."

          Ah, those third parties who keep making adjustment based on the desires of their audience, as a result of which the current moderation algorithms exist. To which you imply that the vast majority think they want to hear a bunch of racists, bigots, conspiracy theorists and religious fanatics spew hot garbage all over the social network they've chosen to patronize.

          Just quit it with the bullshit. The bar owner has decided what they will and will not allow. If the vast majority isn't fine with the rules they go elsewhere.
          We just keep coming back to the fact that the reason your views aren't being heard or allowed is because those views are considered repugnant by most normal people around. Because there really aren't all that many things which get you banned from major social media. Usually it's the demonstrably false and dangerous and the demonstrably malicious and/or utterly repulsive.

          "If that's not obvious, then there is no helping you."

          Utter bullshit based on flawed premises and malicious rhetoric aren't obvious no, and your insistence I can't be helped unless I start chugging the orwellian newspeak is just duly noted.

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          • icon
            Lostinlodos (profile), 1 Nov 2021 @ 12:17pm

            Re: Re: Re: Re:

            Google was built by two techies in a garage…[etc]

            I will say one thing without getting back on anyone’s side.
            The premise that you can do this in your garage no longer is applicable.

            These “garage” moments happen rarely.
            And CIS happened so close together as a rarity.

            This isn’t the mid-70s where rules were inconsistent and enforcement was lax.
            And it’s not the mid-to-late-90s where anyone with a pitch gets tons of investment money.

            Google didn’t survive because they had a good product or because the public supported them. They survived because they had investors who didn’t flinch when the bubble burst.
            There were stronger search products (Altavista, Northern Lights, SpotLight, and Beacon) with far more coverage of the internet.

            Google still hasn’t reached the level of source networks Beacon had. Crawling across usenet, ftp, alpha, Archie, gopher, etc.
            and it lives in as part of the crawling package used by the Internet Archive, and the code under multi function crawlers like SiteSucker and Vac.

            As for FB, who did they knock over?!
            No one. Facebook snagged the general public with a then-easy-to-use layout, early mobile apps, and infinity scroll.
            MySpace still has Millions of users. And it did nothing to UseNet “2.0”.

            Twitter
            Aim lives on with hundreds of thousands of daily users.
            ICQ, CIS, Sparq, multiple extensions of usnet systems.

            What these big companies did was tap the opening for the general public.

            The fact that they haven’t been toppled isn’t innovation: it’s audience.
            Look how long black and white TV held on. How long radio survived. We still buy DVDs.

            Once the general public becomes engaged it’s beyond hard to move them.
            It’s sales 101.

            Windows? Anyone?

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            • icon
              Scary Devil Monastery (profile), 2 Nov 2021 @ 6:26am

              Re: Re: Re: Re: Re:

              "I will say one thing without getting back on anyone’s side.
              The premise that you can do this in your garage no longer is applicable. These “garage” moments happen rarely. And CIS happened so close together as a rarity."

              It really isn't. Through modern history, every radical paradigm shift of business has been spearheaded by a small outlier. Mainly because every major corporation is risk-averse to the point of constipation.

              Similarly if Facebook and Twitter had been the tyrannous anti-speech dictators our newest troll implies they are then any small startup could have eaten their market the same way Page and Brin ate Yahoo's and Altavista's.

              Now, I'm all for debating whether it's unhealthy that Facebook remains such a popular option so as to dominate that market segment...but that's not what our alt-right visitor claimed. He claimed it was unhealthy that facebook was able to set rules of behavior on their own property. And lost his argument in ad hominem when challenged on that.

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              • icon
                Lostinlodos (profile), 2 Nov 2021 @ 12:16pm

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

                unhealthy that Facebook remains such a popular option so as to dominate that market segment.

                Maybe. I’m not sure I really agree. Largest public? Maybe. Most visible? Sure. There’s what, 7bil people on Earth and 6-some have some level of connection? Their own or access to…?
                And how many on Facebook? Twitter?

                That politicians and talking heads are too ignorant, or too challenged, or too out right stupid, to use other services…?

                Sites like Ars and forums like Tom’s have discussed the bizarre divide in the past. At any given moment there’s over a billion IRC connections.

                Sounds like competition to me!
                Blogger, WordPress, Newz? Hundreds of millions of active posters each.

                And that’s not including the non-DNS services. The “deep web” of smaller self hosted servers that are nothing but IP address sites.
                And no, that’s not the “dark web”.
                Want to add those in? Onion. Garlic? Pear?
                How about pea protocol.

                All of these pull hundreds of millions of users monthly.

                I haven’t done the search myself but I wonder what the traffic is Reddit vs twitter?
                I’ll guess it’s close.
                Reddit is a web 1 holdover. Still going strong.
                Vs Web 2.0 twitter.

                As the youth move into professional life, we’re watching them slowly move off the main platforms in general as well!

                For all the focus on the big 2 social sites today, it reminds me of the omg reaction to each social advance since the 70s and CB and short wave.

                I’m no fan of the big 2. I don’t use Facebook at all. I’ve long forgotten and lost my overly complicated password and don’t care enough to reset it.
                Twitter, I don’t post. I have it because everyone in public seems to think it’s the only way to get a message out.

                But I don’t post anything myself. Just the occasion thumbs up like thing or an lol or funny.

                An old George Carlin set comes to mind.
                “If it’s undisputed—what’s all the fighting about?”

                Big? Yes! Public? Yes. Majority? Barely. Only? Not at all.

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                • icon
                  Scary Devil Monastery (profile), 4 Nov 2021 @ 7:18am

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

                  I really hate it when you start making sense, because that makes it hurt more when you now and then come dragging some complete insanity into the ring...

                  "I’m not sure I really agree. Largest public? Maybe. Most visible? Sure."

                  It's the old adage about the screaming idiot doing more for the image of the village than the majority going quietly about their day. Facebook, irrespective of how one thinks of it, is still the social platform everyone talks about because it has the widest common denominator and audience. A bit like how you can become president or chancellor with 12-25% of the vote if you rely on a First Past The Post election system.

                  "An old George Carlin set comes to mind.
                  “If it’s undisputed—what’s all the fighting about?”"

                  Ah, good old George. He's got some spirited successors in Bill Maher and Jon Stewart but...filling his shoes properly isn't going to be easy.

                  I think we all know what all the fighting's about though. Get a thousand people together, most of them will agree to make nice or at least agree to disagree...but there'll always be about a dozen of them who think they're entitled to piss in the face of the people they don't like and that's all it takes for the brawling to begin.

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          • icon
            Lostinlodos (profile), 1 Nov 2021 @ 12:18pm

            Re: Re: Re: Re:

            Google was built by two techies in a garage…[etc]

            I will say one thing without getting on anyone’s side.
            The premise that you can do this in your garage no longer is applicable.

            These “garage” moments happen rarely.
            And CIS happened so close together as a rarity.

            This isn’t the mid-70s where rules were inconsistent and enforcement was lax.
            And it’s not the mid-to-late-90s where anyone with a pitch gets tons of investment money.

            Google didn’t survive because they had a good product or because the public supported them. They survived because they had investors who didn’t flinch when the bubble burst.
            There were stronger search products (Altavista, Northern Lights, SpotLight, and Beacon) with far more coverage of the internet.

            Google still hasn’t reached the level of source networks Beacon had. Crawling across usenet, ftp, alpha, Archie, gopher, etc.
            and it lives in as part of the crawling package used by the Internet Archive, and the code under multi function crawlers like SiteSucker and Vac.

            As for FB, who did they knock over?!
            No one. Facebook snagged the general public with a then-easy-to-use layout, early mobile apps, and infinity scroll.
            MySpace still has Millions of users. And it did nothing to UseNet “2.0”.

            Twitter
            Aim lives on with hundreds of thousands of daily users.
            ICQ, CIS, Sparq, multiple extensions of usnet systems.

            What these big companies did was tap the opening for the general public.

            The fact that they haven’t been toppled isn’t innovation: it’s audience.
            Look how long black and white TV held on. How long radio survived. We still buy DVDs.

            Once the general public becomes engaged it’s beyond hard to move them.
            It’s sales 101.

            Windows? Anyone?

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            • icon
              PaulT (profile), 1 Nov 2021 @ 3:18pm

              Re: Re: Re: Re: Re:

              "Google didn’t survive because they had a good product or because the public supported them. They survived because they had investors who didn’t flinch when the bubble burst."

              I'd say this isn't particularly true. Google had the unique selling point that at the time when the dotcom bubble burst it was very much better at providing their service than their competitors. You can argue their utility now, but when their major competitors were Lycos and Yahoo, they were a superior offering.

              "There were stronger search products (Altavista, Northern Lights, SpotLight, and Beacon)"

              I'm not sure which Altavista you used, but it clearly wasn't the same one I used for the purposes I personally had. I'll submit that maybe there's difference in usage there, but it sure as hell wasn't mine. The rest, I'll admit I never used, but that might be a marketing rather than a tech problem. The fact that Google beat sites that nobody ever used does not mean that Google "cheated".

              "As for FB, who did they knock over?!"

              MySpace were the major one, but many other places like LiveJournal and Blogspot were very much affected I believe. I'm include Friends Reunited, etc., but as ever I don't understand the specific criteria you decided to make your claims correct.

              "Facebook snagged the general public with a then-easy-to-use layout, early mobile apps, and infinity scroll."

              Wow, so you're saying that they gave their potential customers what they wanted and they succeeded?

              "Aim lives on with hundreds of thousands of daily users.
              ICQ, CIS, Sparq, multiple extensions of usnet systems."

              Then why do so many complain that FB and Twitter are somehow monopolies?

              "We still buy DVDs."

              Yes, and not only are there very specific reasons for that, they're not even necessarily a competing market since many people who do that also subscribe to streaming services as well.

              "Once the general public becomes engaged it’s beyond hard to move them.
              It’s sales 101."

              Which is why XBox One was a massive success after the 360 beat out the PS3... wait...

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              • icon
                Lostinlodos (profile), 1 Nov 2021 @ 5:14pm

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

                The fact that Google beat sites that nobody ever used does not mean that Google "cheated"

                Oh, don’t misunderstand me. I don’t think they cheated at all. They just had better people selling the product to the money.

                In fact I point to, retrospectively, the biggest problem Beacon had was they trusted everyone and demanded nothing. They were the usenet on ramp platform in CIS, the search supplier behind the non-web services searches on AOL. And the default search for Conext set-top devices.
                Google just was better at yelling pay me. 🙃

                MySpace wasn’t exactly popular as much as it had been a group of targeted audiences.
                But LiveJournal and Blogspot?
                All three are still going strong.
                VK rivals FB in reach per capita.

                somehow monopolies

                Because they’re ignorant? I wouldn’t begin to do so.

                Which is why XBox One was a massive success after the 360 beat out the PS3... wait...

                Sure, there are exceptions. And you chose one of the most hostile consumer markets to find one.
                But generally, marketing brand loyalty is a real thing.
                One covered in college courses across the globe.
                Just head over to Amazon and type in “brand loyalty”.
                People like what they like. They get hooked on a system and don’t want change.

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  • identicon
    David, 28 Oct 2021 @ 4:23pm

    Why should triggering a panic be legal?

    Seriously, I don't get the obsession with the First Amendment in this context. I don't get to drop rocks on people but that does not mean that the government thinks it can prohibit gravity. And I don't get to shoot people but that does not mean the government prohibits the bullet's inertia.

    Legal consequences for shouting "Fire" in a crowded theatre is not a limitation on speech. It is a limitation on using other people as weapons with an intended outcome. The manner in which people are triggered is not relevant as long as enough of their decision-making gets overriden that at least part of the responsibility for their actions rests with the one inciting them.

    A mob chanting "kill him" is not magically innocent of ensuing actions. That's not a limitation on free speech. That's a limitation on inciting murder.

    Shouting "Fire" in a crowded theatre is reckless endangerment. Interpreting the First Amendment to mean that Congress may make no law against reckless endangerment when the manner of endangerment includes a verbal component: that's just absurd.

    Yes, the importance of the First Amendment means that there will be a place where to draw the line to protect the Freedom of Speech. But it's not here.

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    • icon
      Thad (profile), 28 Oct 2021 @ 4:52pm

      Re: Why should triggering a panic be legal?

      Boy, it's a good thing we have you here to explain why the entire history of First Amendment jurisprudence is wrong.

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    • identicon
      Anonymous Coward, 29 Oct 2021 @ 5:30am

      Re: Why should triggering a panic be legal? Different question!

      The idea of looking at intent and outcome, apart from speech, is not unreasonable. To give a simple example, if someone hacks into a Predator drone and directs it to bomb the Texas legislature -- no matter how amusing it may be -- it is not merely an exercise of "speech" to send a radio signal to the drone -- even though that IS an exercise of speech.

      However, we need to distinguish two very different things. You (and I) are speaking of a deliberate intent to cause a serious harm, and that the person who did it expected it WOULD happen, versus simply an act of speech that one might ALLEGE is part of such a plan. A kid yelling "Fire!" may well think nothing will happen, or that the effect will only be a brief surprise as people see no fire. They may be right. The person who assumes that the shout of fire can and must lead to a devastating panic is someone who has allowed a handful of news stories, cherry picked from the pages of ALL TIME, to shape his impression of what has to happen. In short, the speech itself should not be punishable. If you want to allege some kind of conspiracy to do grievous bodily harm, then go prove the elements of THAT crime.

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      • identicon
        Anonymous Coward, 29 Oct 2021 @ 5:39am

        Re: Re: Why should triggering a panic be legal? Different quest

        To hammer on this a little further, when theater panics DID occur, there were obvious contributors such as the lack of exits, and more interestingly, the abundance of news articles about people burned to death in fires due to lack of exits.

        Without reading news articles about catastrophes in actual fires, the crowd would might never have panicked at a shout of "Fire". You can, therefore, say that the newspaper publisher, putting that idea into people's minds, contributed equally with the person who falsely shouted "Fire". So would you punish the publisher also, for introducing unsettling ideas, like the garden-variety totalitarian? And therefore, never have laws about the number of exits to a theater, and never have a way to stop the deaths in either fires or panics?

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    • icon
      Scary Devil Monastery (profile), 29 Oct 2021 @ 7:30am

      Re: Why should triggering a panic be legal?

      "A mob chanting "kill him" is not magically innocent of ensuing actions. That's not a limitation on free speech. That's a limitation on inciting murder."

      Yes, but as the OP shows, that exception is covered.

      "Shouting "Fire" in a crowded theatre is reckless endangerment."

      Or a bunch of people refusing to be the one possibly sounding a false alarm when smelling smoke. I think you need to go read the Holmes verdict referenced in the OP. It's quite clearly explained why you can not make that illegal.

      If the harm caused by rendering an act illegal is higher than what would be caused by leaving it legal then you probably shouldn't make a law against it.

      If you shout "Fire" in a crowded theatre here's what will happen; People will turn their heads. They will look at you. They'll sniff the air to see if there's smoke. They will not, like lemmings, stampede all over one another to escape - because they know that fire alarms are a thing.

      And if it's a false alarm the ushers will come in and escort you off the premises, telling you not to come back.

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      • icon
        Cathy Gellis (profile), 29 Oct 2021 @ 7:42am

        Re: Re: Why should triggering a panic be legal?

        The issue is that even if it should be illegal, that question was never adjudicated. Holmes just made it up. And it's important to litigate it, before making it the rule, because as I and others have pointed out, you don't want a rule that will deter people from crying out when there really is a fire.

        In any case, you can argue that it should be the rule all you want. But the main point of the post is that it is absolutely wrong to suggest that it's what the rule IS.

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        • icon
          Thad (profile), 29 Oct 2021 @ 8:54am

          Re: Re: Re: Why should triggering a panic be legal?

          And even if it were, it would still be a meaningless observation in most contexts.

          If someone were to use an example of something that definitely is illegal -- say, "fraud is illegal" -- that's not actually any better, because it does nothing to establish that the speech you're talking about is an example of fraud.

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        • icon
          InfoEcon (profile), 31 Oct 2021 @ 7:31pm

          Re: Re: Re: Why should triggering a panic be legal?

          Cathy, thx for the interesting history but, honestly, you overstate the case. David has a valid point. The fairest true statement about falsely shouting fire in a theater is that it hasn’t been adjudicated, not that it would (or should) be protected. If it were adjudicated, it would likely fail as protected speech. As proof, look no further than the very case you cite, Brandenburg v. Ohio. Elaborating on the majority decision, Justice Douglas addressed this specific carve out in his concurrence (with Justice Black further concurring):

          ``The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

          The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

          This is, however, a classic case where speech is brigaded with action. … They are indeed inseparable and a prosecution can be launched for the overt acts actually caused.'' [456-457 -- emphasis added]

          So, judging by the judges who judged it, this would not be protected speech. The reason is that it is both false and panic-inducing –- imminent lawless action. Justices Douglas and Black are among the staunchest free speech absolutists so their exception in this landmark case makes the decision a reasonably sure bet.

          Speaking personally, not legally, I think the right solution is that (1) government has no business regulating specific speech at this level but (2) the families of anyone injured or killed by a false shout of fire in a theater has a cause of action proportional to the damage caused. No damage? Then, no harm, no foul. Someone died? Then the speaker needs to answer for that. Citizens injured rather than government censors ought to have the say.

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          • icon
            Thad (profile), 1 Nov 2021 @ 1:57pm

            Re: Re: Re: Re: Why should triggering a panic be legal?

            David has a valid point.

            Which is...?

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          • icon
            Cathy Gellis (profile), 4 Nov 2021 @ 8:29am

            Re: Re: Re: Re: Why should triggering a panic be legal?

            No, I'm sorry, but you'd have to leap over a lot of precedential language to find it illegal.

            For instance, it presumes too much to even complain the cry was false. You'd need more than that, like an indifference to the falsity, a la NY Times v. Sullivan.

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      • icon
        nerdrage (profile), 30 Oct 2021 @ 10:33am

        Re: Re: Why should triggering a panic be legal?

        If my theater-going experience is anything to go by, about half the audience will fail to even look up from their phones and will probably just burn to death.

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      • icon
        Lostinlodos (profile), 31 Oct 2021 @ 8:43pm

        Re: Re: Why should triggering a panic be legal?

        If you shout "Fire" in a crowded theatre here's what will happen; People will turn their heads. They will look at you. They'll sniff the air to see if there's smoke. They will not, like lemmings, stampede all over one another to escape - because they know that fire alarms are a thing.

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

        No, today they’re more likely do just what you say in most theatres.
        Mind you though… not all theatres have fire alarms. I’m a huge fan of independent film. And most of that stuff runs in off mainstreet or out-of-mall locations.
        Many of these old historical film houses are grandfathered and have no fire protection or detection.
        So that’s only partly accurate.

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        • icon
          Scary Devil Monastery (profile), 1 Nov 2021 @ 7:33am

          Re: Re: Re: Why should triggering a panic be legal?

          "Mind you though… not all theatres have fire alarms. I’m a huge fan of independent film."

          I don't think there's any building which can legally run away from basic fire safety codes. The idea of a building meant to house a business where fire alarms don't exist is as incomprehensible as stating that they drench every seat in gasoline before every performance and illuminate the room with open bonfires.

          Even if, by some miraculous legalese loophole a building where a business is to be run could avoid installing a basic fire alarm I'm for real sure no one in the US would dare not to. The insurance premiums skyrocketing and possible litigation costs would outpace the cost of having live firefighters suspended from the rafters 24/7.

          It's not the best way of saving 50 bucks.

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          • icon
            Lostinlodos (profile), 1 Nov 2021 @ 12:31pm

            Re: Re: Re: Re: Why should triggering a panic be legal?

            There’s a big difference between a handle or button attached to a bell in the lobby, and an actual building wide fire alarm system.

            And one of my fav theatres has 2 bells. One in the lobby and one in the kitchen.
            As proof it’s not illegal to yell fire in a crowded theatre that’s exactly what staff would do at such a location.

            I’ve wondered about laws that allow that. And I’ve seen some hilarious plumbing retrofitting over the years to qualify with local laws.

            It’s only an aside. It’s possible to cause a panic.

            Granted, 5 people watching a German of French film from 1970 or some experimental film from 2020 aren’t really going to stampede. We’ll get up and walk out.

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            • icon
              Scary Devil Monastery (profile), 2 Nov 2021 @ 6:33am

              Re: Re: Re: Re: Re: Why should triggering a panic be legal?

              "Granted, 5 people watching a German of French film from 1970 or some experimental film from 2020 aren’t really going to stampede. We’ll get up and walk out."

              And that, right there.

              Now, I confess to not being up to par on fire safety regulations stateside but at least in europe if you hope to squeeze a few hundred people into a room for any reason there will be requirements. Not polite suggestions.

              "There’s a big difference between a handle or button attached to a bell in the lobby, and an actual building wide fire alarm system. "

              Even if you skimp on regulations and are running an operation which would have USFA come in and levvy federal charges I'd still be surprised if a bunch of normal cheap smoke detectors would be the last priority. Still seems like a silly way to save 50 bucks or so.

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              • icon
                Lostinlodos (profile), 2 Nov 2021 @ 12:25pm

                Re: Re: Re: Re: Re: Re: Why should triggering a panic be legal?

                We have very strict historical building laws in this country. I think that’s all it comes down to. There’s a few thousand historical theatres nation wide. All fairly small. Most in off the track small towns.

                And I’m not talking about fire safety diy. I’m talking about fire prevention systems.

                Everyone has a smoke detector in every room. And it will beep with enough smoke or heat. Or whatever.
                (I always figured we’d be out of the building or burnt to death before some of these went off)

                Most don’t have suppression systems though. And few have connected alarm systems.

                It’s lost its meaning in chain theatres but the usher/caller still has the job of safety in these small locations.

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                • icon
                  Scary Devil Monastery (profile), 4 Nov 2021 @ 7:30am

                  Re: Re: Re: Re: Re: Re: Re: Why should triggering a panic be leg

                  "We have very strict historical building laws in this country. I think that’s all it comes down to. There’s a few thousand historical theatres nation wide. All fairly small. Most in off the track small towns. "

                  We do have similar issues to a point. A number of famous opera houses have stage floors leaning up to ten degrees to ensure the audience can see everything - making them health hazards for ballet dancers and actors. Putting in sprinkler systems meets with significant challenge when the walls are crumbling brick and mortar from centuries back.

                  "(I always figured we’d be out of the building or burnt to death before some of these went off)"

                  Honestly, in a theatre it's actually not a big deal - people are all assembled in one room and the exit is usually easy to reach. Now if shouting "fire" in a big brownstone or highrise was the case...that'd be a different story because if the fire's blocking the stairwell that cheerful beeping from the fire alarm is just telling you the choice is to die from falling out a window or from carbon monoxide poisoning. 😅

                  Or from the building collapsing because the builders cut corners with the concrete and rebar when building it.

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                  • icon
                    Lostinlodos (profile), 4 Nov 2021 @ 9:51am

                    Re: Re: Re: Re: Re: Re: Re: Re: Why should triggering a panic be

                    Yep. As I said up front: not arguing. Just saying it’s not always the case.
                    They all have a rear exit. Someone always tells you about it before the show.

                    And if some idiot falsely yelled fire at one of these I’d put money on them getting their arse handed to them for interrupting our film. Half joking but just saying: the cops would probably be the last thing to worry about interrupting an art house show.
                    It’s where I picked up the term “beat them to death with limp wet noodles”!

                    reply to this | link to this | view in chronology ]

  • identicon
    Arijirija, 28 Oct 2021 @ 8:34pm

    /me quietly wonders about shouting "Theatre!" in a crowded fire, and even more so, shouting "Law!" in a crowded courtroom.

    Having been in a building that caught fire one night, allowing people to shout "Fire!" when there is a fire, is quite helpful, particularly when it comes to surviving it. But causing a panic when there is no fire for malicious reasons, does deserve to be stomped on, hard.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 1 Nov 2021 @ 7:48am

      Re:

      "But causing a panic when there is no fire for malicious reasons, does deserve to be stomped on, hard."

      Well, the theatre owner can sue, of course, and if intent can be proven there's a case for reckless endangerment or incitement.

      But if you're in a theatre and smell smoke I'm pretty sure the last thing anyone wants is for people to stay silent because if they're wrong they'd face charges.

      reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 28 Oct 2021 @ 8:40pm

    Under the Schenck decision, it became illegal to speak out against any official government policy, to the point that even running for public office, even congressional or presidential office, on a platform of changing policy could see you prosecuted and imprisoned.

    It truly was THAT bad a ruling.

    That is so far from how things are supposed to work, it’s not hyperbole to say that it is the complete opposite of what the US Constitution in general, and the First amendment specifically, are supposed to be for!

    reply to this | link to this | view in chronology ]

    • icon
      Tanner Andrews (profile), 1 Nov 2021 @ 5:48am

      Re: _Schenck_

      The decision in Schenck v. U.S, 249 U.S. 47, was so bad that its author spent a considerable part of the rest of his career trying to walk it back. Not always successfully, either: Consider Abrams v. U.S., 250 U.S. 616.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    ObserverInPA (profile), 28 Oct 2021 @ 9:17pm

    LOLOL

    This poster does not know the law AT ALL. Please do not hire her if she pretends to be a lawyer. This is the MOST ridiculous post on TD in a long history of pseuso-legal posts in many years.

    reply to this | link to this | view in chronology ]

    • identicon
      Rocky, 29 Oct 2021 @ 12:32am

      Another day, another shit-poster...

      reply to this | link to this | view in chronology ]

    • icon
      Ellie (profile), 29 Oct 2021 @ 1:12am

      Re: LOLOL

      PA Observer: I am curious. Are you referring to Cathy Gellis as the "poster", and if so, why is this the most ridiculous post on TD in many years? I looked at your comment history, which seems well-informed. (I looked at my own, realized I haven't commented since 2014!)

      I'm not a legal pretender, merely a statistician at a bank. My understanding was that the Sedition Act of 1917 or so was a bridge too far, and was mostly replaced by the Espionage Act (conviction of such being punishable by death but only in very specific and extreme circumstances).

      KKK and Illinois neo-Nazis have the right to assemble and speak freely, without prosecution or harassment by the US government. The Jewish residents of Skokie, IL were not happy about the neo-Nazi parade. President Carter wasn't thrilled either, but he was on the side of the ACLU and First Amendment. The neo-Nazis got a permit, held their march in Chicago without harming or being harmed, then departed never to return. That's how the First Amendment applies to protected speech, yes? Child pornography and incitement to violence/rioting are the only exceptions, yes? The law hasn't changed although willful misinterpretation of it has since 1973, e.g. the ACLU would never file an amicus briefs for neo-Nazis now.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Oct 2021 @ 2:17am

      Re: LOLOL

      But, of course, you won't bother to explain how the post is wrong...

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 29 Oct 2021 @ 7:33am

      Re: LOLOL

      Wow. Some shitposter drops in, posts about four comments in a row all filled with bile and venom visavi the forums...I'd call it a hamfisted attempt if I didn't already know that for the usual trolls around here that's a high-grade effort.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 29 Oct 2021 @ 6:01pm

        Re: Re: LOLOL

        checks post history

        Huh. OP only has, what, four posts scattered over a period of four years. You'd think a certain zombie hunter would be all over his ass, but I guess the observer gets a pass because he vaguely rants about something agreeable to the blue one.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 1 Nov 2021 @ 7:35am

          Re: Re: Re: LOLOL

          "You'd think a certain zombie hunter would be all over his ass, but I guess the observer gets a pass because he vaguely rants about something agreeable to the blue one."

          Considering that old Baghdad Bob/Blue is the one guy with a demonstrated history of sock puppeting and zombie posting I've always been confused why he'd keep pulling attention to it.

          I guess some children just never manage to realize that standing with your hand in the cookie jar and screaming that your brother ate all the cookies never worked.

          reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 29 Oct 2021 @ 8:55am

      Re: Laugh Out Loud Out Loud

      An argument is a connected series of statements intended to establish a proposition. It isn't just contradiction.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 29 Oct 2021 @ 4:52am

    You are right of course. Unfortunately, when our modern means of communication are owned and controlled by a handful of corporations, the government no longer needs to prosecute individuals to silence criticism it claims to present a "clear and present danger." The corporations are willing and able to do it for them.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 29 Oct 2021 @ 5:09am

      Re:

      "when our modern means of communication are owned and controlled by a handful of corporations"

      They're not of course, but it makes people who have problems working with others feel better to pretend that it's a conspiracy against them if they can't use 3-4 of the millions of websites available to communicate after their behaviour has them shown the door.

      "The corporations are willing and able to do it for them."

      Oooh, another golden opportunity! All you have to do is present evidence that this is happening and it's not just a handful of idiots violating the rules of the private property they're using, as has always happened in the physical world. Go on, present your evidence that this is at the demand of the government and you'll. not only change some minds here but have a very good legal case to sue them to stop doing that.

      I never get such evidence after making such a request, for some reason, but there's always a first time.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 29 Oct 2021 @ 5:24am

      Re:

      There are always extremists that think converting society to their viewpoint is their right, and get upset when people refuse to listen to them, and ostracize them because they are extremely annoying hecklers that derail all conversations.

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 29 Oct 2021 @ 11:54am

      Re:

      [Hallucinates facts not in evidence]

      reply to this | link to this | view in chronology ]

  • identicon
    LittleCupcakes, 29 Oct 2021 @ 5:27am

    Preach it!

    Well said indeed.

    If only one could explain it much more succinctly to the self-anointed speech suppressors out there.

    reply to this | link to this | view in chronology ]

  • identicon
    Jim Calvi, 29 Oct 2021 @ 1:11pm

    Free speech

    My first comment is that the Court's opinion does not use the term "crowded" theatre, it merely states theatre. ("The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.") Second, in discussing the First Amendment one must always remember that it is government suppression of speech that the First Amendment prohibits. What private entities like Facebook and Twitter do to suppress speech does not necessarily trigger the protection of the First Amendment. Courts refer to this as "state action." Without the presence of some form of state action, the Amendment does not necessarily apply. Otherwise, I found the article to be informative and well-written.

    reply to this | link to this | view in chronology ]

  • icon
    Zane (profile), 29 Oct 2021 @ 11:14pm

    I can't say I've heard of that phrase, maybe it's an American thing. I would have thought it was a given that if there was a real fire or the person believed wrongly there was a fire, there wouldn't be an issue. If it was some sort of crime, then the prosecution would have to prove that the defendant knew fine well there was no fire, and that their claim was likely to be believed.

    The issue with free speech, is there can be consequences. If a person unncessarily causes a panic and some people are crushed to death, I find it hard to believe that there isn't a law or two that the prosecution would use. Someone will likely call fire service if you claim that there is a fire, have you by you actions caused a false report. Did some kid die because the fire engine was at the movie theatre, rather where a fire was taking place. Or maybe it's fine to miss out the step where we shout in the movie theatre, and just call 911 ourselves - is that also free speech?

    So sure maybe it's not specifically against free speech, but it doesn't mean that such actions could not cause legal issues.

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 1 Nov 2021 @ 7:43am

      Re:

      "I can't say I've heard of that phrase, maybe it's an American thing. I would have thought it was a given that if there was a real fire or the person believed wrongly there was a fire, there wouldn't be an issue."

      Definitely an american thing. Judge Holmes used the phrase in a case related to something completely different and ever since a number of morons keep using it to push arguments it doesn't back.

      The US has the same legislation, more or less, around public safety which everyone else does. If you can show that someone has with intent incited violence or with intent caused unreasonable panic then there's a plethora of charges you can use. Incitement. Reckless Endangerment. Etc.

      reply to this | link to this | view in chronology ]

  • icon
    Lostinlodos (profile), 30 Oct 2021 @ 5:07pm

    Vindicated?

    So as I’ve said, I’ve always supported you he right to yell fire in a crowded theatre.
    Even in the actual case where the term comes from where the false claim lead to injuries and death.

    The ability to speak should or be hindered.
    And one must take responsibility for that speech.

    If I were to falsely yell fire I. A crowded theatre, I would be responsible for all that followed that. From loss of revenue to potential deaths.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2021 @ 6:13pm

      Re: Vindicated?

      The ability to speak should or be hindered.

      Does that include allowing abusive speech that drives away users, of someone disrupting a forum by insisting on being off topic, or is being banned from the site of forum acceptable consequences.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 31 Oct 2021 @ 5:13am

    "With freedom of speech comes responsibility" -- to THINK!

    I see the canard about freedom of speech coming with "responsibility" has shown up. That is just as much a lie as the phrase this article is about. I mean, it's true as written, but false as applied.

    They tell you it has "responsibility" in that if the brute with the mace doesn't like what you say he's going to shove it up your rectum. Be responsible with your free speech. Uh-huh. NO.

    They tell you it has "responsibility" in that if you say a syllable while a crowd walks past, someone might turn his head this way rather than that, see a five dollar bill on the sidewalk and pick it up, spend it on a cheap meal he might not have eaten, end up with diarrhea in a bathroom airport, therefore not overhear the conversation of the terrorists who were getting set up to hijack a plane. You see, a careless syllable can make you responsible for thousands of deaths. Uh-huh. NO.

    The responsibility that comes with free speech is you have to THINK. You have to balance the risk of a false report with the risk of hasty action. You have to choose between a democratic candidate and a fascist candidate. You have to decide what you want to believe about science or religion without having somebody bark it to you as an order. It is a heavy responsibility, but it is NOT the one most people saying this phrase are pushing. And you have the responsibility to reject their nonsense when they do!

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Nov 2021 @ 9:50pm

      Re: "With freedom of speech comes responsibility" -- to THINK!

      If I've learned anything about responsibility it's that the true lesson of responsibility is to make sure it belongs to somebody else.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Nov 2021 @ 10:13pm

    On the other side of the "moderation at scale is too EXPENSIVE" is "ADVERTISING is too expensive." Advertising will always allow anyone to get their message out.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Nov 2021 @ 10:14pm

    Anyone who wants an audience for any message need only run a contest with a $50 prize and it should go viral.

    reply to this | link to this | view in chronology ]

  • icon
    restless94110 (profile), 6 Nov 2021 @ 9:29pm

    Fire

    Thank you for this fine, fine article. I had known about this issue for several decades, knew that Holmes regretted his throwaway line, but had no idea it had never been a part of law, never knew that the line had been repudiated in a later Supreme Court decision.

    This is one of the few articles on this issue that appear here that inform me and give me immense pleasure to read.

    Thanks again.

    reply to this | link to this | view in chronology ]


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