# So how is this not a violation of the 1st amendment? **URL:** \ **Category:** Great Debates\ **Created:** [September 16, 2012, 9:51am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864 "2012-09-16T09:51:14Z")\ **Posts on this page:** 20\ **Page:** 5
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 1:45am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/81 "2012-09-18T01:45:23Z")
> [@WhyNot](#): > > I specialize in that. You just be very vague, avoid key words like “Jesus” “Father” or “Goddess”, avoid overt references to any sort of Higher Power, and everyone thinks you agree with them. Parallel phrases make it poetical and prayer like; triplets help, too: “Let us take a moment to pause before we begin. Bow your heads if you like. We use this time to reflect on the purpose that brings us here today. Let us work to be wise, to be humble and to be grateful for the opportunity to do our work. Let us listen to each other with compassion and respect, dignity and grace, blah blah blah blah blah…” Well, yeah, you TRY. But the idea that one can have a secular prayer is silly. It’s an oxymoron. It’s not possible. It’s pretending, in order to get away with prayer. > [@](#): > > And yes, prayer before City Council meetings is exceedingly common. They pray before House and Senate sessions in Washington, D.C., too. There, I believe they get around the establishment clause not by being nondenominational at each prayer, but by inviting people of different faiths to pray at some sessions. It may not be establishment, but it’s still prayer. At least those people don’t pretend it’s “secular prayer.” ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 1:46am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/82 "2012-09-18T01:46:35Z")
> [@Ibn\_Warraq](#): > > I think he meant non-denominational. Yes. Which is still religion, and therefore doesn’t get out from under the establishment clause. The establishment clause doesn’t say no particular Christian denomination, it says no religion. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 18, 2012, 2:01am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/83 "2012-09-18T02:01:25Z")
> [@lance\_strongarm](#): > > Ah, the obligatory “fire in a crowded theatre” reference from the amateur constitutional scholars. Stick this in your pipe and have a good smoke: [Justice Stephen Breyer: Is Burning Koran ‘Shouting Fire In A Crowded Theater?’](http://abcnews.go.com/blogs/politics/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater/) (from link): > [@](#): > > We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer (said) that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning. > > **“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me.** “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?” The phrase in quesion is one of the most famous in the history of American jurisprudence, and someone of Breyer’s stature should not really be needed to legitimitize it. However, his approval comes in handy when there are amateurs (or incompetent professionals) about who could profit from some guidance in the art of informed debate. And it does not matter how the court eventually ruled in the Koran case. The point is that Justice Holmes’ immortal phrase is still relevant and useful today. It always will be. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 2:09am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/84 "2012-09-18T02:09:29Z")
> [@colonial](#): > > The point > is that Justice Holmes’ immortal phrase is still relevant and useful today. It always will be. Okay, okay, calm down. Go ahead and use it, just please don’t use it like some kind of magic words that prove whatever wild exception you dream up to the First Amendment. Sorry if I lumped you in with people who do that. I see it on \*every single debate \*about the First Amendment. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 18, 2012, 2:16am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/85 "2012-09-18T02:16:02Z")
> [@lance\_strongarm](#): > > Okay, okay, calm down. Go ahead and use it, just please don’t use it like some kind of magic words that prove whatever wild exception you dream up to the First Amendment. > > Sorry if I lumped you in with people who do that. I see it on \*every single debate \*about the First Amendment. You see it in every debate about the First Amendment because it is relevant to every debate about the First Amendment. ---
**Author:** ![j666](https://avatars.discourse-cdn.com/v4/letter/j/9de0a6/32.png) [@j666](https://boards.straightdope.com/u/j666)\ **Post date:** [September 18, 2012, 2:34am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/86 "2012-09-18T02:34:32Z")
> [@colonial](#): > > Stick this in your pipe and have a good smoke: > > [Justice Stephen Breyer: Is Burning Koran ‘Shouting Fire In A Crowded Theater?’](http://abcnews.go.com/blogs/politics/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater/) > > (from link): > “Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?” > > The phrase in quesion is one of the most famous in the history of American > jurisprudence, and someone of Breyer’s stature should not really be needed to > legitimitize it. However, his approval comes in handy when there are amateurs > (or incompetent professionals) about who could profit from some guidance in > the art of informed debate. > > And it does not matter how the court eventually ruled in the Koran case. The point > is that Justice Holmes’ immortal phrase is still relevant and useful today. It always will be. It certainly is useful. I would expect something so ‘immortal’ not to be mischaracterized and misspoken so often. A Supreme Court decision is not legislation. An analogy is not legislation. An article, even by Stephanopolous, is not legislation. Speculation by a current Supreme on how a theoretical case might be decided by this or another court is not legislation. I do not know of an instance in which a person has falsely cried “Fire” in a crowded theatre; been arrested, tried, and convicted of a crime; appealed the case on the grounds that the conviction was an infringement of a right to free speech; and lost. Enl **ight** en us. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 18, 2012, 2:43am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/87 "2012-09-18T02:43:33Z")
> [@j666](#): > > It certainly is useful. I would expect something so ‘immortal’ not to be mischaracterized and misspoken so often. > > A Supreme Court decision is not legislation. An analogy is not legislation. An article, even by Stephanopolous, is not legislation. Speculation by a current Supreme on how a theoretical case might be decided by this or another court is not legislation. > > I do not know of an instance in which a person has falsely cried “Fire” in a crowded theatre; been arrested, tried, and convicted of a crime; appealed the case on the grounds that the conviction was an infringement of a right to free speech; and lost. > > Enl **ight** en us. Previously addressed. Go back and read my earlier posts. More carefully this time. ---
**Author:** ![j666](https://avatars.discourse-cdn.com/v4/letter/j/9de0a6/32.png) [@j666](https://boards.straightdope.com/u/j666)\ **Post date:** [September 18, 2012, 3:03am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/88 "2012-09-18T03:03:22Z")
> [@colonial](#): > > Previously addressed. > > Go back and read my earlier posts. More carefully this time. You seem to misunderstand. I have read your posts. I disagree with them. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 18, 2012, 3:10am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/89 "2012-09-18T03:10:18Z")
> [@j666](#): > > You seem to misunderstand. I have read your posts. I disagree with them. If all you can do now is parrot yourself then I have no further reply to make. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [September 18, 2012, 5:46am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/90 "2012-09-18T05:46:13Z")
This is a bit of a hijack, but IMHO **j666** is right about _[Schenck](http://en.wikipedia.org/wiki/Schenck_v._United_States)_ (link goes to a Wiki article with links to the full opinion). As others have noted, the case was about advocating draft resistance. In addressing whether the First Amendment is an absolute freedom, Justice Holmes (writing for a unanimous court) famously mentioned falsely shouting fire in a theatre as an example of how the freedom is not absolute. That’s all he meant, though, and all the Court could have intended, as the case didn’t involve those facts. This is why the passage is considered dictum. The Supreme Court did not make falsely shouting fire in a theatre a crime, and would have been quick to point out if asked that it doesn’t have such power. Rather, it suggested (in dictum) that such a law would be constitutional under the First Amendment. **colonial** makes decent arguments (see [Post #78](http://boards.straightdope.com/sdmb/showpost.php?p=15500883&postcount=78)) for how the conduct might be illegal, but _Schenck_ didn’t make it so. And didn’t claim to. ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [September 18, 2012, 5:54am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/91 "2012-09-18T05:54:25Z")
> [@lance\_strongarm](#): > > Yes. > > Which is still religion, and therefore doesn’t get out from under the establishment clause. > > The establishment clause doesn’t say no particular Christian denomination, it says no religion. I largely agree, but the courts don’t. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 12:57pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/92 "2012-09-18T12:57:12Z")
> [@colonial](#): > > You see it in every debate about the First Amendment because it is relevant > to every debate about the First Amendment. LOL! No, it’s not always relevant. Sometimes people bring up irrelevant things in debates, you know. What I usually see is something like this argument: “Hey, you can’t yell fire in a crowded theatre! That means there are allowable exceptions. Therefore any wild, ridiculous exception I dream up is allowable!” ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [September 18, 2012, 1:16pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/93 "2012-09-18T13:16:36Z")
> [@colonial](#): > > I interpret Holmes as saying legislation is not required in certain flagrant cases > such as the theater fire hypothetical. > > Yelling “fire” in a theater is not so different from a fake bomb threat. Is Mr. RNATB > trying to tell us that before specific legislation was enacted prohibiting the specific > act of making fake bomb threats people who made such threats could not be prosecuted? Holmes is saying no such thing. You are projecting information that isn’t really there into his comment. Endangerment was not a crime at common law. I just spent half an hour looking and found no cases where a conviction for endangerment was based on speech alone. The closest was a New York case where the defendant paid a homeless guy to do push-ups and sit-ups in the middle of a busy highway. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 1:31pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/94 "2012-09-18T13:31:59Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Holmes is saying no such thing. You are projecting information that isn’t really there into his comment. Endangerment was not a crime at common law. > > I just spent half an hour looking and found no cases where a conviction for endangerment was based on speech alone. The closest was a New York case where the defendant paid a homeless guy to do push-ups and sit-ups in the middle of a busy highway. Well, the case where Holmes mentioned his hypothetical “fire” thingie, there was such a conviction based on speech alone (based on violation of a statute though). AND that case was later overturned (properly, I think). ---
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [September 18, 2012, 1:57pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/95 "2012-09-18T13:57:48Z")
> [@lance\_strongarm](#): > > It’s what religious people stooped to as an argument to save their precious little In God We Trust on coins - claiming that God is nothing special and has no meaning but an empty slogan. Yet they claim to be defending religion from secularism. Actually, the idea of “God” in the motto IGWT being secular and not really a deity, is what the _court_ came up with to avoid having to strike it down. “Religious people,” as in the common folk on the street, don’t know this, and see the reference to God in the motto and in the pledge to be a ringing endorsement of their religion. That’s a big problem I have with the pledge and the motto - the courts say it’s not _really_ talking about God, but the common people always bring that up as proof that the US is a Christian nation. ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 2:00pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/96 "2012-09-18T14:00:23Z")
> [@CurtC](#): > > Actually, the idea of “God” in the motto IGWT being secular and not really a deity, is what the _court_ came up with to avoid having to strike it down. The court didn’t come up with it on its own, I don’t think - it was presented by litigants in the case. Not sure though. In any event, I’ll bet it is quoted religiously (so to speak) in any briefs since then by defenders of the slogan. > [@](#): > > “Religious people,” as in the common folk on the street, don’t know this, and see the reference to God in the motto and in the pledge to be a ringing endorsement of their religion. That’s a big problem I have with the pledge and the motto - the courts say it’s not _really_ talking about God, but the common people always bring that up as proof that the US is a Christian nation. Yes, it’s very convenient. When religion conflicts with law, it’s simply not religion at that time. Voila! ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 18, 2012, 2:51pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/97 "2012-09-18T14:51:41Z")
> [@lance\_strongarm](#): > > LOL! > What I usually see is something like this argument: > > "Hey, you can’t yell fire in a crowded theatre! That means there are allowable exceptions. “There are exceptions” is relevant point in every free speech debate. It would be a bit dull if the “fire” example was invoked in every one of those debates; there are other ways to make the point. However, whether a subject is dull or not has no effect on its relevance. > [@lance\_strongarm](#): > > Therefore any wild, ridiculous exception I dream up is allowable!" So point out the error of their logic. The syllogism: Premise: There are exceptions. Conclusion: Therefore all the exceptions I dream up are allowable. is fallacious because the conclusion does not follow from the premise. It is a _non sequitur_. It would be no different, logically, if they were to say this: Premise: There are laws. Conclusion: Therefore all the laws I dream up are allowable. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [September 18, 2012, 3:15pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/98 "2012-09-18T15:15:43Z")
> [@lawbuff](#): > > The word GOD is secular. > [@lance\_strongarm](#): > > That’s laughably absurd. Even if a court has bought it. The word LORD is mentioned in the Constitution. Shall we UNratify it? Does laughable also apply to a christmas tree, which has been ruled secular in nature for establishment clause purposes. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 18, 2012, 3:43pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/99 "2012-09-18T15:43:30Z")
I think Breyer is wrong by equating Koran burning with falsely shouting fire in a theater. Falsely shouting fire would lead a reasonable person to panic and cause others to be trampled. Koran burning merely shows contempt for Islam and may cause UNreasonable people to commit murder. The test for whether speech should be allowed cannot be the actions of unreasonable people, because then pretty much all political speech can be banned. We can’t have an article critical of President Obama (or insert other political figure) because maybe a nut will read the article and attempt him harm? ---
**Author:** ![lance\_strongarm](https://avatars.discourse-cdn.com/v4/letter/l/87869e/32.png) [@lance\_strongarm](https://boards.straightdope.com/u/lance_strongarm)\ **Post date:** [September 18, 2012, 3:44pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/100 "2012-09-18T15:44:37Z")
> [@colonial](#): > > “There are exceptions” is relevant point in every free speech debate. Of course. That’s not my complaint. > [@](#): > > It would be a bit dull if the “fire” example was invoked in every one > of those debates; there are other ways to make the point. However, > whether a subject is dull or not has no effect on its relevance. Fine. My new comment: it’s dull, and it’s a warning of possible irrelevance to follow. > [@](#): > > So point out the error of their logic. > > The syllogism: > > Premise: There are exceptions. > Conclusion: Therefore all the exceptions I dream up are allowable. > > is fallacious because the conclusion does not follow from the premise. > It is a _non sequitur_. > > It would be no different, logically, if they were to say this: > > Premise: There are laws. > Conclusion: Therefore all the laws I dream up are allowable. Thanks, well done. [Previous page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=4) [Next page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=6)