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"The Supreme Court has noted that the FCC has an expansive mandate to ensure broadcasters operate in the public interest." (National Broadcasting Co. v. U.S., 3

by mhneu 9y ago

"The Supreme Court has noted that the FCC has an expansive mandate to ensure broadcasters operate in the public interest." (National Broadcasting Co. v. U.S., 319 U.S. 190, 219 (1943).) It's like shouting fire in a theater when there is none - that would not be in the public interest. Neither is broadcasting lies to deceive the public.

loeg 9y ago
The "shouting fire in a theater" example is a poor comparison, because it likely is allowed under the first amendment[0][1]. It may not be in the public interest, but as far as I know, the FCC does not regulate theaters. [0]: https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ https://www.theatlantic.com/national/archive/2012/11/its-tim... [1]: https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://www.popehat.com/2015/05/19/how-to-spot-and-critique-...
- tw04 9y ago
  That's ridiculous. Shouting fire in a theater would be covered under 18 U.S. Code 2102 - inciting a riot (assuming anyone took you seriously). There's absolutely no way that's protected under free speech, and there are countless examples of previous trials to back it up. People like the guy you link are ridiculous and just want to be the smartest guy in the room. In 2017, people using the phrase are obviously not referencing the case in question, and common sense would tell you that shouting fire in a crowded theater would result in a situation in which you could be tried for violating countless laws if the end-result was damage to property or persons.
  - totalZero 9y ago
    > There's absolutely no way that's protected under free speech, and there are countless examples of previous trials to back it up. Would you mind showing me one of those examples? I just did a bit of google searching, and was unable to find one. Even the original case (Schenck v. United States) had nothing to do with fires or theaters. > shouting fire in a crowded theater would result in a situation in which you could be tried for violating countless laws if the end-result was damage to property or persons. The "imminent lawless action" test established in Brandenburg v. Ohio requires more than just a damaging end-result. Intent, imminence, and likelihood must all be demonstrated in order for speech to be considered illegal. Maybe that test also applies to false fire alarms in theaters, but it certainly takes more than simply causing a bad end-result to happen.
  - loeg 9y ago
    Just to clarify, the author of that post is a practicing lawyer specializing in first amendment law. Guessing from your comments, you seem to work in software. Do you profess any particular legal expertise? As the other commenter notes, I can't find any example of 2102 being applied like this.
    - tclancy 9y ago
      Popehat has an additional followup about Holmes' recanting his famous example: https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ https://www.popehat.com/2012/09/19/three-generations-of-a-ha...
  - rgbrenner 9y ago
    ... under 18 U.S. Code 2102 - inciting a riot... No law can override the first amendment. The only question is if the first amendment protects it. If it does, then that law is unconstitutional along with any other law that attempts to infringe on it. To say that a law supersedes the constitution would make the constitution a worthless document.
    - LocalH 9y ago
      Welcome to the state of modern civics education.
totalZero 9y ago
Falsely shouting "fire!" in a crowded theatre incites behavior that is knowingly contrary to the well-being of the patrons. (Also, some defenders of the first amendment argue that this is protected speech, but let's ignore that for now.) Imagine I pay a news station to run a story about a hospital (for example) which I believe to have saved many lives and I expect will continue to do so. Arguably my advertisement is in the public interest, because it brings attention to a potential health benefit. What then, hypothetically? Is "public interest" still a justification for the fine?
- sitkack 9y ago
  Imagine if you will an absurdly constructed hypothetical argument.
  - deleted 9y ago
    [deleted]
- nkozyra 9y ago
  You solve this very easily one of two ways: 1) Clearly labeling that the content you're showing is sponsored. or 2) Not accepting payment and running the story Stations do this all the time. It's called 1) Advertising or 2) News.
craftyguy 9y ago
> Neither is broadcasting lies to deceive the public. That's pretty damn rich given that the FCC did this just a few days ago.
jrochkind1 9y ago
It's not like that at all. If shouting fire in a crowded theater is constitutionally prohibitable, it's not because it's not in the public interest, it's because it's dangerous. In general, the government is NOT allowed to prohibit any speech that "is not in the public interest" under the constitution. In general. The FCC and broadcasting is a special case justified by limited spectrum (although one that the Supreme Court has extensively limited further since 1943), but not because it's like shouting fire in a crowded theater.

by mhneu 9y ago

loeg 9y ago

The "shouting fire in a theater" example is a poor comparison, because it likely is allowed under the first amendment[0][1]. It may not be in the public interest, but as far as I know, the FCC does not regulate theaters. [0]: https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/ https://www.theatlantic.com/national/archive/2012/11/its-tim... [1]: https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://www.popehat.com/2015/05/19/how-to-spot-and-critique-...

tw04 9y ago
That's ridiculous. Shouting fire in a theater would be covered under 18 U.S. Code 2102 - inciting a riot (assuming anyone took you seriously). There's absolutely no way that's protected under free speech, and there are countless examples of previous trials to back it up. People like the guy you link are ridiculous and just want to be the smartest guy in the room. In 2017, people using the phrase are obviously not referencing the case in question, and common sense would tell you that shouting fire in a crowded theater would result in a situation in which you could be tried for violating countless laws if the end-result was damage to property or persons.
- totalZero 9y ago
  > There's absolutely no way that's protected under free speech, and there are countless examples of previous trials to back it up. Would you mind showing me one of those examples? I just did a bit of google searching, and was unable to find one. Even the original case (Schenck v. United States) had nothing to do with fires or theaters. > shouting fire in a crowded theater would result in a situation in which you could be tried for violating countless laws if the end-result was damage to property or persons. The "imminent lawless action" test established in Brandenburg v. Ohio requires more than just a damaging end-result. Intent, imminence, and likelihood must all be demonstrated in order for speech to be considered illegal. Maybe that test also applies to false fire alarms in theaters, but it certainly takes more than simply causing a bad end-result to happen.
- loeg 9y ago
  Just to clarify, the author of that post is a practicing lawyer specializing in first amendment law. Guessing from your comments, you seem to work in software. Do you profess any particular legal expertise? As the other commenter notes, I can't find any example of 2102 being applied like this.
  - tclancy 9y ago
    Popehat has an additional followup about Holmes' recanting his famous example: https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ https://www.popehat.com/2012/09/19/three-generations-of-a-ha...
- rgbrenner 9y ago
  ... under 18 U.S. Code 2102 - inciting a riot... No law can override the first amendment. The only question is if the first amendment protects it. If it does, then that law is unconstitutional along with any other law that attempts to infringe on it. To say that a law supersedes the constitution would make the constitution a worthless document.
  - LocalH 9y ago
    Welcome to the state of modern civics education.

totalZero 9y ago

Falsely shouting "fire!" in a crowded theatre incites behavior that is knowingly contrary to the well-being of the patrons. (Also, some defenders of the first amendment argue that this is protected speech, but let's ignore that for now.) Imagine I pay a news station to run a story about a hospital (for example) which I believe to have saved many lives and I expect will continue to do so. Arguably my advertisement is in the public interest, because it brings attention to a potential health benefit. What then, hypothetically? Is "public interest" still a justification for the fine?

sitkack 9y ago
Imagine if you will an absurdly constructed hypothetical argument.
- deleted 9y ago
  [deleted]
nkozyra 9y ago
You solve this very easily one of two ways: 1) Clearly labeling that the content you're showing is sponsored. or 2) Not accepting payment and running the story Stations do this all the time. It's called 1) Advertising or 2) News.

craftyguy 9y ago

> Neither is broadcasting lies to deceive the public. That's pretty damn rich given that the FCC did this just a few days ago.

jrochkind1 9y ago

It's not like that at all. If shouting fire in a crowded theater is constitutionally prohibitable, it's not because it's not in the public interest, it's because it's dangerous. In general, the government is NOT allowed to prohibit any speech that "is not in the public interest" under the constitution. In general. The FCC and broadcasting is a special case justified by limited spectrum (although one that the Supreme Court has extensively limited further since 1943), but not because it's like shouting fire in a crowded theater.