So how is this not a violation of the 1st amendment?

[CurtC]

Originally Posted by colonial

He said no such thing.

WTF?!? He specificially said so!

"The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic."

This specifically says that if someone tried to use the free speech provision of the First Amendment to avoid trouble for falsely yelling "fire," then he would be S.O.L. The First Amendment would not protect him.

I don't see any room for another interpretation of his words.

[colonial]

Originally Posted by CurtC

WTF?!? He specificially said so!

"The most stringent protection of free speech would not protect a man in falsely
shouting fire in a theatre and causing a panic."

This specifically says that if someone tried to use the free speech provision of the First Amendment to avoid trouble for falsely yelling "fire," then he would be S.O.L. The First Amendment would not protect him.

I don't see any room for another interpretation of his words.

You are correct.

I was confllated on your other, inaccurate contention that falsely shouting
fire was legal at the time of Schenk with the accurate observation above.

[CurtC]

Originally Posted by colonial

I was confllated on your other, inaccurate contention that falsely shouting fire was legal at the time of Schenk with the accurate observation above.

When did I say that it was legal at the time Holmes wrote that? Hint: I didn't.

[colonial]

Originally Posted by CurtC

When did I say that it was legal at the time Holmes wrote that? Hint: I didn't.

W-e-l-l-l I think there is enough ambiguity in the following
to draw the inference I drew:

(from post #141):

Originally Posted by CurtC

Holmes was not saying that falsely yelling "fire" in a crowded theater was illegal; he wasn't even saying it should be illegal. He was exploring the reasonable limits on freedom of speech that could be codified in the law. He was saying that if the legislature passed a law against falsely yelling "fire," then that law could be upheld because it wouldn't violate the First Amendment.

My whole point from my first reply to this thread has been
Holmes was saying it was illegal. Your negative adverbs do
not exactly convey affirmation. On the other hand, if you
are on board with my point of view glad to have you.

[CurtC]

I'll let someone else judge whether your interpretation of my words is reasonable. To me, it isn't at all what I said.

And I am definitely not on board with your contention that Holmes was trying to say that it was illegal. Whether it was or it wasn't had nothing to do with his rhetorical point.

[colonial]

Originally Posted by CurtC

...And I am definitely not on board with your contention that Holmes was trying to say that it was illegal.

Sorry to hear you are among those who are unable to grasp the obvious.

Originally Posted by CurtC

Whether it was or it wasn't had nothing to do with his rhetorical point.

Its illegality is of the essence.

Now, I have had enough of this. If someone comes up with a really novel rejoinder
I will reply. But we are wasting away in repetitionville, and I have had enough.

[PBear42]

Let's recall how we got started on this tangent. It was Post #37, in which you asserted (in response to Ibn Warraq) that Schenck (link to full opinion) ruled that falsely shouting fire in a theatre is illegal. See also Posts #43 and #77. Several of us pointed out that Schenck ruled no such thing. Rather, it assumed the conduct was illegal (without citation or explanation) and stated a prohibition thereof would be permissible under the First Amendment. For the text of the whole paragraph, the core of decision, see below. Given the facts of the case, this statement was dictum. You and others have since given good arguments for how the conduct might be illegal, but Schenck isn't one of them. And that was your original assertion.

But it is said, suppose that that was the tendency of this circular [i.e., to influence people to resist the draft], it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the [p52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime. Goldman v. United States, 245 U.S. 474, 477. Indeed, that case might be said to dispose of the present contention if the precedent covers all media concludendi. But, as the right to free speech was not referred to specially, we have thought fit to add a few words. (Emphasis supplied.)

As for how falsely shouting fire fits into the Court's holding that a clear and present danger test applied, I'll admit that's a matter of interpretation. To me, it was presented as an example of how the protection of free speech isn't absolute. After that, to paraphrase an old joke, they were just arguing over price, i.e., where to draw the line. For which, in adopting the clear and present standard, the Court cited several cases. To me, shouting fire wasn't part of that analysis, but reasonable minds can differ. In any event, your original assertion was wrong.

[colonial]

Originally Posted by PBear42

Let's recall how we got started on this tangent. It was Post #37, in which you asserted (in response to Ibn Warraq) that Schenck (link to full opinion) ruled that falsely shouting fire in a theatre is illegal. See also Posts #43 and #77. Several of us pointed out that Schenck ruled no such thing. Rather, it assumed the conduct was illegal (without citation or explanation) and stated a prohibition thereof would be permissible under the First Amendment. For the text of the whole paragraph, the core of decision, see below. Given the facts of the case, this statement was dictum. You and others have since given good arguments for how the conduct might be illegal, but Schenck isn't one of them. And that was your original assertion.

It still is my assertion that Schenk is not only a good argument, but the best
argument: you cannot get any better than a unanimous US Supreme Court.

The original issue was whether falsely shouting fire was illegal. Mr. Warraq
said he was unaware of any “ruling” against it, although he later temporized
by admitting he was “speaking a bit tongue in cheek” (post #47).

Now we have Mr. PBear62 coming along and saying “Aha!-- it wasn't a ruling,
it was a 'dictum'”. Well, call it any goddam thing you want, but the terminology
is not the issue. What IS the issue is the Supreme's Court's specific stance on
the legality of a specific act. No appeal to terinmology can change the matter
of legal fact and the matter of legal history that in Schenk the SC pronounces
falsely yelling fire to be illegal.

Originally Posted by PBear42

As for how falsely shouting fire fits into the Court's holding that a clear and present danger test applied, I'll admit that's a matter of interpretation. To me, it was presented as an example of how the protection of free speech isn't absolute.

If the most stringent protection cannot protect someone who falsely shouts
fire in a crowded theater then how in God's name can falsely shouting fire be
anything other than a clear and present danger?

Originally Posted by PBear42

After that, to paraphrase an old joke, they were just arguing over price, i.e., where to draw the line.

That joke, attributed to George Bernard Shaw, is not about drawing a line.
It is about being on the wrong side of a line:

Shaw: My dear lady, would you sleep with me for a thousand pounds?
Lady: Why yes, of course I would sleep with you for a thousand pounds!
Shaw: How about one pound?
Lady: Certainly not! What do you take me for, anyway!?
Shaw: We have already determined what you are. Now we are only trying
to settle on the price.

Prior to Schenk some clever lawyer might have argued that a client who
falsely shouted fire was, technically speaking, not on the wrong side of
the legal line. He would have been incorrect for reasons already discussed
here. What Schenk did was spell out what otherwise what would have to be construed.

Originally Posted by PBear42

In any event, your original assertion was wrong.

Nice try.

[PBear42]

Frankly, I posted that mostly so lurkers in the thread would have, presented in a straight line, the argument so many of us have made. Also, I thought it might be helpful to have the full text of the paragraph in view, so folks could see the context of the sentence under discussion. That you refuse to concede the point doesn't make you right. I leave it to others to draw their own conclusions.

[Really Not All That Bright]

Now we have Mr. PBear62 coming along and saying “Aha!-- it wasn't a ruling,
it was a 'dictum'”. Well, call it any goddam thing you want, but the terminology
is not the issue. What IS the issue is the Supreme's Court's specific stance on
the legality of a specific act. No appeal to terinmology can change the matter
of legal fact and the matter of legal history that in Schenk the SC pronounces
falsely yelling fire to be illegal.

No matter how many times you make this claim, it won't magically become true. Read the quote again. It does not presuppose that the conduct is illegal. It simply notes that the conduct is not protected. You seem to find this proposition troubling, but there are any number of activities which- though not subject to constitutional protection- are not illegal.

[CurtC]

colonial, are you a native English speaker? I ask because your interpretation of my postings was the opposite of what I thought I had clearly said, and your interpretation of Holmes' words is, apparently, unique. Everyone here except you thinks that Holmes was very clear, and no one else thinks he was making a point that falsely yelling "fire" was illegal.

[j666]

Back to the original topic.

Someone did raise the issue of a "chilling effect". Why should that be such a concern with a free press, and not with the speech of individuals?

[adaher]

It's always a concern. There's something else I noticed. Normally when Bible Thumpers oppose a movie, the first thing 1st amendment defenders ask is, "Did any of them actually see the film?" I notice that the US government condemned this film and for all we know it doesn't even exist yet. Why isn't the government being criticized for condemning a film they haven't seen?

[j666]

Originally Posted by adaher

It's always a concern. There's something else I noticed. Normally when Bible Thumpers oppose a movie, the first thing 1st amendment defenders ask is, "Did any of them actually see the film?" I notice that the US government condemned this film and for all we know it doesn't even exist yet. Why isn't the government being criticized for condemning a film they haven't seen?

I believe they were condemning the release video itself, the fake trailer.

[colonial]

Originally Posted by PBear42

Frankly, I posted that mostly so lurkers in the thread would have, presented in a straight line, the argument so many of us have made...

Suits me.

Originally Posted by Really Not All That Bright

No matter how many times...

Repetitionville.

Originally Posted by CurtC

colonial, are you a native English speaker?

Yes.

AB English Literature and Political Science, University of North Carolina at Chapel Hill (1971); Phi Beta Kappa.

How about you? Your posts are drop-out level.

Originally Posted by CurtC

I ask because your interpretation of my postings was the opposite of what I thought I had clearly said,

You pretty well got your balls hammered flat except for my one immaterial misreading.
That is really nothing to hang your hat on, but when you ain't got nothin you got
nothin to lose by making something up.

Originally Posted by CurtC

and your interpretation of Holmes' words is, apparently, unique. Everyone here except you thinks that Holmes was very clear, and no one else thinks he was making a point that falsely yelling "fire" was illegal.

Do you know what a fallacy is?

The Truth is not a popularity contest. Google argumentum ad populum.

Ad populum does not apply to expert opinion. However, I do not think anyone
who has posted to this thread is an expert in constitutional law. And even an expert
may be rebutted.


Finally, good old Wiki pulls through again with a fine citation, one which does much
to establish the ILlegality act Holmes and the rest of us have been discussing:

New York Times 9/25/1884: "A cry of fire in a crowded theater"


Now, I truly am through with this discussion.

[Really Not All That Bright]

Originally Posted by colonial

Repetitionville.

Yes.

[Nars Glinley]

Originally Posted by lance strongarm

Probably unconsitutional because he's speaking on behalf of the government, even if you are not compellled. It's your government, you pay taxes to it, and in that way you are "compelled" to support it.

Then how is this situation different than the State Department asking Google to take down a video? Aren't they speaking on behalf of the government even though they're not compelling Google to remove it?

[Really Not All That Bright]

Different constitutional provisions. State sponsored prayer implicates the Establishment Clause, not the Free Speech Clause.

[Nars Glinley]

Originally Posted by Really Not All That Bright

Different constitutional provisions. State sponsored prayer implicates the Establishment Clause, not the Free Speech Clause.

I understand that they're different provisions but there's still an element of "compelling" in each one. How is "Please bow your heads in prayer" more compelling than "Please take down your video"?

[Really Not All That Bright]

The Establishment Clause isn't about compulsion. It's about things that government can't do itself, rather than things it can't tell you to do (or not do). A government sponsored prayer is a violation* regardless of whether anyone is even asked to join in.

*Sometimes. It's okay if Congress does it, because they always have, and they'd just have ignored SCOTUS if told not to.

[CurtC]

RNATB, non-sectarian prayers at some government meetings have not been struck down. From what I've seen, a city council can have a prayer, as long as it's not always a prayer to Jesus. They can do a non-sectarian prayer to some vague god, or they can have a Jesus prayer as long as they also have Jewish/Muslim/Hindu prayers.

Also, I think I recall that with schools, you can't have prayer, whether it's at school announcements, or at a football game, or at a school board meeting.

[BigT]

Originally Posted by Really Not All That Bright

The Establishment Clause isn't about compulsion. It's about things that government can't do itself, rather than things it can't tell you to do (or not do). A government sponsored prayer is a violation* regardless of whether anyone is even asked to join in.

*Sometimes. It's okay if Congress does it, because they always have, and they'd just have ignored SCOTUS if told not to.

And this is precisely what makes it stupid. The first amendment covers both freedom of speech and freedom of religion. It makes no sense to interpret the two concepts differently. Neither what was done here nor non-compulsive religious activity by the government should be illegal. Either there is a law, which is defined as a consequence for the actions, or there is not.

BTW, I don't see how Google can claim that the video doesn't violate their terms of service. It puts certain other policy decisions in a different light--it seems they just enforce the rules based on their own agenda. They don't want to be seen as bowing down to religious extremists.

[Really Not All That Bright]

Originally Posted by CurtC

RNATB, non-sectarian prayers at some government meetings have not been struck down. From what I've seen, a city council can have a prayer, as long as it's not always a prayer to Jesus. They can do a non-sectarian prayer to some vague god, or they can have a Jesus prayer as long as they also have Jewish/Muslim/Hindu prayers.

I know. I'm just explaining why "compulsion" isn't a necessary element of an Establishment Clause violation.