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Constitutional protections are never absolute. e.g. yelling fire in a crowded theater, the 2nd amendment and WMDs, or practicing a religion that requires human
by lisper 5y ago
Constitutional protections are never absolute. e.g. yelling fire in a crowded theater, the 2nd amendment and WMDs, or practicing a religion that requires human sacrifice. (Even animal sacrifice might be prohibited, I don't know.)
- unanswered 5y ago> yelling fire in a crowded theater ... is not and never has been an exception to the constitution. It was written as part of a dissent which has been thoroughly ignored and repudiated except by people who don't understand the first thing about US law.
- kube-system 5y agoIt is technically incorrect (or at least, untested to the current standard), but it's a useful and more understandable approximate than the technically correct "imminent lawless action"... and a lot more palatable than quoting the KKK leader whose case set that standard.
- anjbe 5y agoYes, much more palatable to quote a decision that used the phrase to argue protesting the draft is a violation of the Espionage Act.
- kube-system 5y agoI can't tell if this is sarcasm, but yes, I agree. That is more palatable than quoting violent white supremacist rhetoric.
- lisper 5y agoYou are mistaken. It was written by Oliver Wendel Holmes writing for a unanimous court in Schenck v. United States: https://en.wikipedia.org/wiki/Schenck_v._United_States https://en.wikipedia.org/wiki/Schenck_v._United_States Granted that decision was later partially overturned, but the general principle that the first amendment protections are not absolute remains in force, and there are many extant examples: libel laws, laws barring false advertising, and laws against incitement of violence are all constitutional.
- lurquer 5y agoThere is no law against yelling fire in a theatre. The phrase was used by Justice Holmes in a boneheaded decision that upheld the illegality of objecting to the draft. Thankfully, the opinion was later overturned. The very narrow point being made by the Supreme Court was there could be crimes-such as inciting imminent lawless action-that might be precipitated by speech. It’s not the speech that’s illegal... the crime is the intent to cause an immediate riot. The same crime could be occasioned by storming into a theater with a gun and scaring the shit out of people. In any case, the “yelling fire” trope isn’t accurate as it’s usually used. As far as human sacrifice, there’s nothing inherently illegal about it. That is, if it’s legal for grandma to be euthanized, or legal for a convict to be executed, or legal for a baby to be aborted, it would make no difference legally if the participants considered the act part of some bizarro religion.
- anjbe 5y agoThat there are practical limits is never in dispute. The question is always whether this instance is protected or falls under an exception, and should it be. The analogy “fire in a crowded theater” was most famously used by Justice Holmes in 1919’s Schenck v. United States. Holmes used it to argue (and the court ruled that) protesting the military draft was a clear and present danger to the public tantamount to espionage. Most people today, I think, would disagree. But the metaphor remains common, often used uncritically, without considering what speech it has been used to suppress in the past.