# Freedom of Speech (1st Amendment) - legal "evolution"? **URL:** \ **Category:** Factual Questions\ **Created:** [May 29, 2007, 5:42pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949 "2007-05-29T17:42:28Z")\ **Posts on this page:** 13\ **Page:** 1
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [May 29, 2007, 5:42pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/1 "2007-05-29T17:42:28Z")
A classic, if not hackneyed, example to illustrate the limits of ‘freedom of speech’ is the question of whether one should be permitted to yell “fire!!” in a crowded hall (and, of course, the answer is, “no, of course not”). My question is whether such apparently natural limits to freedom of speech were decided on a case basis (i.e. by precedents) or were assumed from the get-go? Similarly, it is taken for granted (I think) that freedom of speech is constrained such that statements like “I’m going to kill the president tomorrow, and then blow up the White House” are not protected. Likewise, so too (I assume) are deliberate public utterings of false and malicious statements about specific individuals (“Mr. John Smith, CEO of XYZ industries, sexually abuses young boys _and_ gerbils, often simultaneously”). Again, I ask, were the restrictions above “inherent” when the 1st amendment was promulgated, or were they determined on a case basis and the establishment of precedents? Thanks in advance! ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 29, 2007, 6:13pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/2 "2007-05-29T18:13:27Z")
The short answer is case by case. The long answer will keep going for pages in GD when it is moved there! 🙂 ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [May 29, 2007, 6:54pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/3 "2007-05-29T18:54:28Z")
[QUOTE=KarlGauss] My question is whether such apparently natural limits to freedom of speech were decided on a case basis (i.e. by precedents) or were assumed from the get-go? [/QUOTE] I don’t know how one can answer that. I don’t know of any debate over fire-in-a-crowded-theater or its variants when the First Amendment was drafted and adopted. If there had been such a debate, I doubt whether you would have gotten a uniform response. The most extensive early discussion of the First Amendment, that I’m aware of, took place when the Sedition Act of 1798 was adopted. The discussion took place in Congress and the press, not the courts—judicial review of federal laws hadn’t been established at the time, and even if it had been there was little prospect that a Federalist judiciary would interfere with a Federalist Congress. The outcome of that discussion—the enaction of the draconian Sedition Act—suggests that legislators of the early republic took a more expansive view of free speech exceptions than we would today. Federalists defended the act on the ground that “seditious libel”—in this case, “malicious” criticism of the President or Congress—was exempt from First Amendment protection, just as any other libel would be. The opposition Republicans took exception to this view, but they were the minority at the time. After the Sedition Act expired in 1801, the First Amendment lay in abeyance for the next 115 years. Before the doctrine of incorporation, it didn’t apply to states, and the tiny federal government had little occasion to consider laws that might violate it. During World War I, Congress passed another Sedition Act, which finally brought the matter before the courts. So by the time of the earliest court precedents, the First Amendment was already 125 years old. Since that time the doctrine of incorporation, a more intrusive federal government, and a more litigious society have opened the floodgates. ---
**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\ **Post date:** [May 29, 2007, 7:43pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/4 "2007-05-29T19:43:26Z")
I wouldn’t limit the debate on the First Amendment of any specific fundamental right. When the philosophers of the age of enlightenment in the 18th century developed the concept of fundamental rights, of which freedom of speech is a prime example, they were all very aware that there must be some limits to every legally acknowledged freedom so as to protect other people and their rights and interests. The French [Declaration of the Rights of Man and of the Citizen](http://en.wikisource.org/wiki/Declaration_of_the_Rights_of_Man_and_of_the_Citizen) of 1789, coincidentally the same year as the U.S. Bill of Rights was drafted, makes this clear. Many of the rights contained there are subject to restrictions imposed by law. It would have been much too radical and not practicable to demand unlimited freedoms; enlightenment authors demanded more freedoms, but they were not anarchists and did not deny the necessity of legal restrictions to fundamental rights. That goes for European philosophers as well as for the American founding fathers. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [May 29, 2007, 8:19pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/5 "2007-05-29T20:19:54Z")
[QUOTE=Freddy the Pig] After the Sedition Act expired in 1801, the First Amendment lay in abeyance for the next 115 years. Before the doctrine of incorporation, it didn’t apply to states, and the tiny federal government had little occasion to consider laws that might violate it. [/QUOTE] I did not know that. Are you saying that the 1st amendment (and, by association, the others at the time) applied only to DC? Can you elaborate, please - I am an ignoramus when it comes to US history, constitution, etc. Thanks. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [May 29, 2007, 8:31pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/6 "2007-05-29T20:31:57Z")
[QUOTE=KarlGauss] I did not know that. Are you saying that the 1st amendment (and, by association, the others at the time) applied only to DC? Can you elaborate, please - I am an ignoramus when it comes to US history, constitution, etc. Thanks. [/QUOTE] That meant that they applied to Federal legislation, which would generally apply across the whole country, but not to state legislation. So the State of New York could have passed a valid sedition act, banning seditious libel against the State and against state officials such as the Governor. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 29, 2007, 8:38pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/7 "2007-05-29T20:38:58Z")
[QUOTE=KarlGauss] I did not know that. Are you saying that the 1st amendment (and, by association, the others at the time) applied only to DC? Can you elaborate, please - I am an ignoramus when it comes to US history, constitution, etc. Thanks. [/QUOTE] No, it means that it was applied only to federal laws, laws passed by Congress, as opposed to laws passed by state or local legislatures. However, most state constitutions had provisions similar to the first amendment so that state courts could also apply freedom of speech protections. It was just that one couldn’t argue protection from a state law in federal court. That seems odd, and indeed today the courts consider that the 14th Amendment extended federal rights to state laws, but that doctrine was built up slowly over time. Case by case, as I said. [Wiki](http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution) has a good summary of this issue. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [May 30, 2007, 2:56am UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/8 "2007-05-30T02:56:24Z")
[QUOTE=KarlGauss] A classic, if not hackneyed, example to illustrate the limits of ‘freedom of speech’ is the question of whether one should be permitted to yell “fire!!” in a crowded hall (and, of course, the answer is, “no, of course not”). [/QUOTE] Actually, there’s no problem with shouting “fire” in a crowded hall - if it’s on fire! 😛 The quotation (misquotation, actually, since the word “falsely” is commonly omitted) comes from the decision of the Supreme Court of the United States in [Schenck v. United States, 249 U.S. 47 (1919)](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=249&page=47). Justice Holmes for the unanimous court stated: > [@](#): > > The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. In _Schenck_, the Court upheld three convictions for sedition, based on an anti-war pamphlet urging draftees to obstruct the draft. Holmes J. noted that it was not clear if the First Amendment simply prohibited prior restraint, or might go further, and protect someone from legal punishment for speech: > [@](#): > > But it is said, suppose that that was the tendency of this circular, 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 [249 U.S. 47, 52] main purpose,** as intimated in Patterson v. Colorado, 205 U.S. 454, 462 , 27 S. Sup. Ct. 556, 51 L. ed. 879, 10 Ann. Cas. 689. Nowadays, it’s well-established that the First Amendment does go beyond prohibiting prior restraint, but that point has been established in subsequent cases, as **Exapno Mapcase** commented. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [May 30, 2007, 9:34am UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/9 "2007-05-30T09:34:14Z")
[QUOTE=Northern Piper] Actually, there’s no problem with shouting “fire” in a crowded hall - if it’s on fire! 😛 [/QUOTE] Another situation where you might lawfully shout “Fire!” in a crowded hall is if you are an actor performing in a play, and the fire is part of the story of the play. A third situation would be where you are having a fire drill, and you tell the audience in advance that it is just going to be a practice evacuation. So for shouting “Fire!” to be unlawful: (1) it must be false; (2) you must reasonably expect your audience to believe it to be true; and (3) a reasonable person would expect that it would cause panic, and hence possibly cause injuries among the audience. ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [May 30, 2007, 12:42pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/10 "2007-05-30T12:42:54Z")
As a matter of legal principle, though it is of somewhat less practical effect, it would be appropriate to distinguish between what is permissibly made illegal and what is made actionable. Many an untrue statement may not be made\*\* illegal to say or write\*\* under First Amendment protection, but might nonetheless subject the speaker or writer to a lawsuit from an outraged victim slandered or libelled by that statement. ---
**Author:** ![Giles](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/giles/32/60_2.png) [@Giles](https://boards.straightdope.com/u/Giles)\ **Post date:** [May 30, 2007, 1:00pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/11 "2007-05-30T13:00:39Z")
[QUOTE=Polycarp] As a matter of legal principle, though it is of somewhat less practical effect, it would be appropriate to distinguish between what is permissibly made illegal and what is made actionable. Many an untrue statement may not be made\*\* illegal to say or write\*\* under First Amendment protection, but might nonetheless subject the speaker or writer to a lawsuit from an outraged victim slandered or libelled by that statement. [/QUOTE] Though doesn’t _New York Times Co. v. Sullivan_ affect the standards you have to reach if you are a plaintiff in a libel suit? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [May 30, 2007, 5:47pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/12 "2007-05-30T17:47:30Z")
[QUOTE=Polycarp] As a matter of legal principle, though it is of somewhat less practical effect, it would be appropriate to distinguish between what is permissibly made illegal and what is made actionable. Many an untrue statement may not be made\*\* illegal to say or write\*\* under First Amendment protection, but might nonetheless subject the speaker or writer to a lawsuit from an outraged victim slandered or libelled by that statement. [/QUOTE] The First Amendment affects liability for defamation, so your statement is not accurate, entirely. ---
**Author:** ![Race\_Bannon](https://avatars.discourse-cdn.com/v4/letter/r/5f8ce5/32.png) [@Race\_Bannon](https://boards.straightdope.com/u/Race_Bannon)\ **Post date:** [May 30, 2007, 9:16pm UTC](https://boards.straightdope.com/t/freedom-of-speech-1st-amendment-legal-evolution/405949/13 "2007-05-30T21:16:31Z")
[QUOTE=Giles] Another situation where you might lawfully shout “Fire!” in a crowded hall is if you are an actor performing in a play, and the fire is part of the story of the play. A third situation would be where you are having a fire drill, and you tell the audience in advance that it is just going to be a practice evacuation. So for shouting “Fire!” to be unlawful: (1) it must be false; (2) you must reasonably expect your audience to believe it to be true; and (3) a reasonable person would expect that it would cause panic, and hence possibly cause injuries among the audience. [/QUOTE] In fact, Penn Jillette routinely yells “FIRE” during a botched juggling routine, six nights a week at the Rio. And he points out that he is getting away with it. _then he juggles broken whiskey bottles_