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I’d like to see some better sourcing for this. The Wikipedia article, bizarrely, claims that shouting ‘fire!’ in a crowded theatre (and thereby causing a stampe

by foldr 4y ago

I’d like to see some better sourcing for this. The Wikipedia article, bizarrely, claims that shouting ‘fire!’ in a crowded theatre (and thereby causing a stampede or some other awful consequence) is actually protected by the First Amendment in the US. However, the only source it gives for this claim is a Reason article. Edit: See here for a more nuanced perspective: https://www.mentalfloss.com/article/627134/is-it-illegal-to-shout-fire-in-crowded-theater https://www.mentalfloss.com/article/627134/is-it-illegal-to-... Shouting “Bomb!” or “Gun!” in public would put you in a similar situation. In May 2018, for example, officials had to evacuate part of Daytona Beach International Airport after a man ran naked through the building screaming about a bomb in the women’s bathroom. There was no bomb, but he was charged with “false report of a bomb,” “criminal mischief,” and “exposure of sexual organs,” among other things. In that case, no self-respecting lawyer would advise him to claim his actions were protected by the First Amendment.

johng 4y ago
The speech is protected but you are not protected from the consequences it causes if you use it wrongly.
- foldr 4y ago
  Yes - that is exactly the point of the analogy. Compare for example political speech, which can also have terrible consequences, but where it would be an obvious violation of the First Amendment to (e.g.) prosecute an economist for the terrible consequences of their economic ideas.
- SkyBelow 4y ago
  What does it mean for speech to be protected if not meaning to be protected from the consequences? Could I not say one is free to murder but one is not protected from the consequences of murder? I think we can break down government and non-government consequences, but given the previous discussions in the chain were on legality I think the discussion is already focused on government consequences. As a side note I think the non-government consequences can then be broken down further to legal and illegal actions, with the idea the only consequences you aren't protected from are the legal non-government consequences.
  - janalsncm 4y ago
    It means 1A isn’t a defense for that action if you are prosecuted for it.
- inglor_cz 4y ago
  You remind me of a dark joke from late Communist Czechoslovakia that said "The Czechoslovak Constitution guarantees freedom of speech, but not freedom after speech."
remarkEon 4y ago
You can just go to the text of the Opinion.[1] >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. See Speiser v. Randall, 357 U.S. 513, 536—537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J., concurring.) They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience. [1] https://www.law.cornell.edu/supremecourt/text/395/444 https://www.law.cornell.edu/supremecourt/text/395/444
- foldr 4y ago
  The part you quote appears to say that it would be permissible to prosecute someone for the consequences of deliberately shouting ‘fire!’ when they knew that there was no fire (because it’s one of the rare cases where speech is ‘brigaded with action’). In other words, the court rejected the applicability of the analogy to the case at hand. They didn’t draw the conclusion that deliberately causing stampedes in theaters is protected by the First Amendment.
  - remarkEon 4y ago
    Right, that’s my interpretation as well. I think the real point is something more simple like “you cannot falsely report a fire” (I mean, you can, but you’ll get charged with a crime). The reference to the theater seems to kind of cloud the analogy a lot - and serves to confuse the association with free speech generally.
saurik 4y ago
(This might be useful, though I am not purporting to state in which direction.) https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1748&context=wmborj https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1...
zerocrates 4y ago
Yeah so, the anti-"fire in a crowded theater" people are right, in the sense that the analogy was dicta in an overturned case whose actual "clear and present danger" test is no longer the standard (specifically, the case held that handing out flyers protesting the draft for World War I was not speech protected by the First Amendment, a laughable proposition today). The replacement standard instead excludes protection for speech that is both "directed to" and "likely to" "incite or produce imminent lawless action," and these things are construed quite narrowly. So: it's a bad analogy that was never the actual legal test, doesn't match the current test, and references an overturned case. But that doesn't mean it's actually legal to knowingly falsely shout "fire" in a crowded theater intending to cause a panicked stampede (though note there's more detail about intent and knowledge given there, and there would be other questions). To a certain extent, trying to stop people referencing this really doesn't matter, though. If you got all the country's internet commentators to talk about "incitement to imminent lawless action" instead, they'd be in all likelihood deploying that phrase in the same places they currently use "fire in a crowded theater" or "clear and present danger." Eliminating this one analogy isn't really going to move the needle on people's understanding of what the First Amendment protects, but the phrase is both enduringly popular and a bugbear of the kind of people who care about this stuff, so the arguments and corrections will continue.

by foldr 4y ago

johng 4y ago

The speech is protected but you are not protected from the consequences it causes if you use it wrongly.

foldr 4y ago
Yes - that is exactly the point of the analogy. Compare for example political speech, which can also have terrible consequences, but where it would be an obvious violation of the First Amendment to (e.g.) prosecute an economist for the terrible consequences of their economic ideas.
SkyBelow 4y ago
What does it mean for speech to be protected if not meaning to be protected from the consequences? Could I not say one is free to murder but one is not protected from the consequences of murder? I think we can break down government and non-government consequences, but given the previous discussions in the chain were on legality I think the discussion is already focused on government consequences. As a side note I think the non-government consequences can then be broken down further to legal and illegal actions, with the idea the only consequences you aren't protected from are the legal non-government consequences.
- janalsncm 4y ago
  It means 1A isn’t a defense for that action if you are prosecuted for it.
inglor_cz 4y ago
You remind me of a dark joke from late Communist Czechoslovakia that said "The Czechoslovak Constitution guarantees freedom of speech, but not freedom after speech."

remarkEon 4y ago

You can just go to the text of the Opinion.[1] >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. See Speiser v. Randall, 357 U.S. 513, 536—537, 78 S.Ct. 1332, 1346, 2 L.Ed.2d 1460 (Douglas, J., concurring.) They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience. [1] https://www.law.cornell.edu/supremecourt/text/395/444 https://www.law.cornell.edu/supremecourt/text/395/444

foldr 4y ago
The part you quote appears to say that it would be permissible to prosecute someone for the consequences of deliberately shouting ‘fire!’ when they knew that there was no fire (because it’s one of the rare cases where speech is ‘brigaded with action’). In other words, the court rejected the applicability of the analogy to the case at hand. They didn’t draw the conclusion that deliberately causing stampedes in theaters is protected by the First Amendment.
- remarkEon 4y ago
  Right, that’s my interpretation as well. I think the real point is something more simple like “you cannot falsely report a fire” (I mean, you can, but you’ll get charged with a crime). The reference to the theater seems to kind of cloud the analogy a lot - and serves to confuse the association with free speech generally.

saurik 4y ago

(This might be useful, though I am not purporting to state in which direction.) https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1748&context=wmborj https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1...

zerocrates 4y ago

Yeah so, the anti-"fire in a crowded theater" people are right, in the sense that the analogy was dicta in an overturned case whose actual "clear and present danger" test is no longer the standard (specifically, the case held that handing out flyers protesting the draft for World War I was not speech protected by the First Amendment, a laughable proposition today). The replacement standard instead excludes protection for speech that is both "directed to" and "likely to" "incite or produce imminent lawless action," and these things are construed quite narrowly. So: it's a bad analogy that was never the actual legal test, doesn't match the current test, and references an overturned case. But that doesn't mean it's actually legal to knowingly falsely shout "fire" in a crowded theater intending to cause a panicked stampede (though note there's more detail about intent and knowledge given there, and there would be other questions). To a certain extent, trying to stop people referencing this really doesn't matter, though. If you got all the country's internet commentators to talk about "incitement to imminent lawless action" instead, they'd be in all likelihood deploying that phrase in the same places they currently use "fire in a crowded theater" or "clear and present danger." Eliminating this one analogy isn't really going to move the needle on people's understanding of what the First Amendment protects, but the phrase is both enduringly popular and a bugbear of the kind of people who care about this stuff, so the arguments and corrections will continue.