Please, please, please, stop using that phrase. It’s from a terrible, now-overruled, opinion that said it was okay to arrest people for distributing anti-draft pamphlets.
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yep , there is always either a meme or a saturday nite sketch !
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Is there a better phrase that I could use to express the limitations of the First Amendment?
The thrust of the article seems to be that the “fire in a crowded theater” is not a compelling argument for censorship, but 1) I am arguing for gun control, not censorship, and 2) The article does not actually go so far as to say that one can tell fire in a crowded theater, just that it is not a good corollary for censorship.
Telling someone that you’re going to kill them, right now, is not protected speech. Not much longer than the “theater” thing and much more legally accurate.
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That is another good example, but are you actually saying that a person who yelled fire in a crowded theater while knowing that there was no fire could not be charged with any crime? Not even disorderly conduct?
Maybe a misdemeanor, but nothing like aggravated assault. Besides, as the link above refers to, the particular case of the historical background of the phrase “yelling fire in a crowded theater” is not one that you want to bring up when you want to win people over. The Alien and Sedition Act is nothing to hang one’s hat on.
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Fair enough. In the future, I will just leave it at, “The freedoms ensured by the First Amendment are in no way unlimited, just as the Second Amendment does not ensure unlimited freedom to bear arms.” That was the point that I was trying to make with that old connard.
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The first amendment is often constrained by copyright.
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A topical example would be “Everyone, let’s go storm the Capitol and shut it down” is not protected Free Speech; you’d be inciting one of the “preventing Congress from doing their damn job” crimes.
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Sidebar: This is an awful commonly-used analogy for a number of reasons.
- Holmes didn’t use the word “crowded.”
- Holmes was referring to a common cultural touchstone at the time—people shouting “fire” in theatres. In 1912 this would have been a bit like saying “Karen
calling for the managerCalling the cops on a Black man for walking his dog.” - the wording was an example, not a law
- it was used in a case that is usually recognized as a horrible ruling that improperly restricted speech (Schenk was printing anti-war pamphlets)
- The case was overturned.
- It’s not actually illegal to yell fire in a theatre. Causing mayhem or panic would be.
Good read:
https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1748&context=wmborj
ETA, better Karen example
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I can see now why it is a bad analogy. When I took a political philosophy (or maybe it was ethics) class back in college, it was used as a kind of litmus test for looking at where to draw the line between free speech and harmful action that took the form of speech acts, but it was presented outside of historical context as a moot. I think that there are clearer ways of making the distinction without bringing up the crowded theater example (like making a false report to the police, threats, explicitly telling people to hurt other people, etc.), so I will stick to those going forward. The reason why I brought it up was that, in the class, we looked at all of the amendments together to examine what limits, if any, there were to them and what that meant in practical terms. The debate revolved around how far one person’s freedom stretched before impinging on the freedom of another (a la John Stuart Mill), and I found it fascinating. I always thought that the crowded theater example was just a hypothetical used for debates among law students. I never considered the real world implications.
Wikipedia has a good read on this. I always thought the metaphor was silly because I didn’t think that simple act would cause anyone to explode into panic. People would just look around, see no fire, and wonder what you’re yelling about. However, apparently it has actually happened twice.
I still struggle to believe this is a likely outcome though. Maybe because fire was a much more ever-present threat in the 19th century when those incidents occurred. Perhaps “shooter” would have the same effect today.
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Lol, I didn’t see there were other replies on this. I’m sorry. Early morning, hung over, feeling pedantic. It’s a common example.
Sorry!!
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