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Incidentally, the "yell fire in a crowded theater" quote is also frequently abused, as it was part of a blatantly wrong and later overturned Supreme Court opini
by alexbecker 12y ago
Incidentally, the "yell fire in a crowded theater" quote is also frequently abused, as it was part of a blatantly wrong and later overturned Supreme Court opinion holding that it was illegal to oppose the draft (which probably is an essential freedom).
- XorNot 12y agoI'll have to look it up, because I'm pretty sure they didn't find you could. They overturned the actual suppressing draft opposition. You definitely don't have the right to directly endanger lives via "speech" - i.e. you can't claim free speech as protection for spreading false or misleading information that results in death, at least knowingly (which is more often the crux of such an argument).
- alexbecker 12y ago(Obligatory IANAL) Under the Brandenburg v. Ohio ruling, the State can only prohibit "dangerous" speech if it is both intended and likely to incite imminent lawless action. The opinion is explicitly overturning the later case of Whitney v. California but in doing so fundamentally undermines Justice Holmes' opinion in Schenck. To quote the opinion: "Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." I do not think distributing pamphlets advocating resisting the draft meets this standard. EDIT: On rereading, it looks like your comment is saying that yelling fire in a crowded theater remains prohibited. I quite agree. I just think it's misleading to cite a piece of an opinion which was largely overturned as evidence for some legal position. Rather the later case law should be cited to make such an argument.