# 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:** 6
**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, 3:48pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/101 "2012-09-18T15:48:40Z")
> [@lawbuff](#): > > The word LORD is mentioned in the Constitution. Shall we UNratify it? This discussion is about what is constitutional, not whether we should unratify something. > [@](#): > > Does laughable also apply to a christmas tree, which has been ruled secular in nature for establishment clause purposes. Yes. The idea that a Christmas tree is purely secular is also laughable. It may be constitutional in that context, but not because it is not religious. It may be virtually secular at this point, but not yet. We haven’t completely squashed “the meaning of Christmas” out of it yet. Perhaps soon though. It could be a purely secular holiday that nobody even remembers or cares about the religious significance of, and that anyone of any religion feels fine celebrating, like Halloween. I’m sure the Christians will all feel great when that happens! ---
**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, 3:56pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/102 "2012-09-18T15:56:53Z")
> [@lance\_strongarm](#): > > This discussion is about what is constitutional, not whether we should unratify something. Okay, let me rephrase it. Does the word LORD in the Constituion in your opinion violate the Establishment Clause? ---
**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, 4:28pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/103 "2012-09-18T16:28:53Z")
> [@lawbuff](#): > > Okay, let me rephrase it. Does the word LORD in the Constituion in your opinion violate the Establishment Clause? Again, the constitution can’t violate itself. But I get your point. If it were some other legal document, I’d say no. Just having a word isn’t the point, it’s how it is used. ---
**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, 4:42pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/104 "2012-09-18T16:42:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Holmes is saying no such thing. You are projecting information that isn’t really there into his comment. How can there be any doubt that Holmes considered the “fire” scenario to exemplify actionable illegal behavior? Any doubt at all? How could anyone manage to pervert the unambiguous “protection of free speech \*would not protect \* a man in falsely shouting fire” into something alien to its obvious meaning and obvious intent? > [@Really\_Not\_All\_That\_Bright](#): > > 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. Endangerment need not have been the specific basis for conviction, although it is so clearly relevant I feel it must show up somewhere. Also, maybe there is no reference to it because appeals judges have had the good sense to throw defendants out of court ever since Holmes enunciated “clear and present danger” I am aware of the fact that _Brandenberg_ substituted another standard in at least some cases involving political speech. However, Justice Breyer apparently seems to think that “clear and present danger” may still form a basis for legal decision-making, and I have a feeling he is not alone. Here is more on the common law aspect of the matter: [Wiki: Clear and present danger](http://en.wikipedia.org/wiki/Clear_and_present_danger) (from link, emphasis added): > [@](#): > > …Before the twentieth century, most free speech issues involved prior restraint. Starting in the early 1900s, the Supreme Court began to consider cases in which persons were punished after speaking or publishing. **The primary legal test** used in the United States to determine if speech could be criminalized **was the bad tendency test.** **Rooted in English common law** , the test **permitted speech to be outlawed if it had a tendency to harm public welfare** … Note that “bad tendency” was invoked in the 1907 landmark case for acts involving speech alone, but _not_ involving risk of physical injury. It should therefore not be any stretch to consider it appropriate to invoke the principle in more drastic circumstances where there IS risk of physical injury. Now, you have not really answered this point I made: > [@colonial](#): > > Yelling “fire” in a theater is not so different from a fake bomb threat. Is Mr. Really Not All That Bright 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? You are in law school, right? Never mind finding hunting for legal citations, how do you think the law should have been applied back in the time of the first fake bomb threat in history, before there was anything on the books? Just let the asshole not only go scott free, but also free to make more fake threats until the legislature gets around to writing a new law? ---
**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, 4:54pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/105 "2012-09-18T16:54:07Z")
> [@lance\_strongarm](#): > > But I get your point. If it were some other legal document, I’d say no. Just having a word isn’t the point, it’s how it is used. Most state Constitutions have similar language in thier Constitution’s as mine. It seems clear how the word GOD is used here. In your opinion is this a violation of the Establishment Clause? Preamble; We, the people of the State of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this Constitution. ---
**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, 4:56pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/106 "2012-09-18T16:56:17Z")
> [@colonial](#): > > You are in law school, right? Never mind finding hunting for legal citations, > how do you think the law should have been applied back in the time of the > first fake bomb threat in history, before there was anything on the books? > Just let the asshole not only go scott free, but also free to make more fake > threats until the legislature gets around to writing a new law? There are laws against Disorderly Conduct; Menacing; Inducing Panic; and any # of catch all laws. ---
**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, 5:01pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/107 "2012-09-18T17:01:00Z")
> [@colonial](#): > > How can there be any doubt that Holmes considered the “fire” scenario to > exemplify actionable illegal behavior? Any doubt at all? How could anyone > manage to pervert the unambiguous “protection of free speech \*would not protect \* > a man in falsely shouting fire” into something alien to its obvious meaning > and obvious intent? Read my first post again. > [@](#): > > You are in law school, right? Never mind finding hunting for legal citations, > how do you think the law should have been applied back in the time of the > first fake bomb threat in history, before there was anything on the books? > Just let the asshole not only go scott free, but also free to make more fake > threats until the legislature gets around to writing a new law? Well, yes. The point of criminal legislation is to allow people to conform their conduct to the law. That’s why we don’t allow ex post facto laws. ---
**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, 5:11pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/108 "2012-09-18T17:11:26Z")
> [@lawbuff](#): > > Most state Constitutions have similar language in thier Constitution’s as mine. It seems clear how the word GOD is used here. In your opinion is this a violation of the Establishment Clause? > > Preamble; > > We, the people of the State of Ohio, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare, do establish this Constitution. Probably. Depends on the history for me. “Year of our Lord,” for instance, is just a fragment. It’s clearly not religious any more, it’s just a leftover custom. “In God we Trust” and “under God” were both adopted in the 1950s though, and designed specifically to thumb our noses at the godless commies. It’s a little different context. But my larger point is the depths to which religious people, or at least the courts, went to protect those. They said they aren’t religious at all. Yep, “God” is not religious. It demeaned religion, not secularism. ---
**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, 5:26pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/109 "2012-09-18T17:26:05Z")
> [@lance\_strongarm](#): > > Probably. Depends on the history for me. This is illustrative of the Frieze in the US SC Chambers of the 10 Commandments. There is a “History” of the World’s lawgivers, Moses, Hammurabi, etc. ---
**Author:** ![Clothahump](https://avatars.discourse-cdn.com/v4/letter/c/51bf81/32.png) [@Clothahump](https://boards.straightdope.com/u/Clothahump)\ **Post date:** [September 18, 2012, 5:27pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/110 "2012-09-18T17:27:58Z")
> [@Ravenman](#): > > Is it a violation of the Fourth Amendment if a police officer asks you if he can search your car, if he does not have a search warrant, and you say no anyways? Say no. Period. That puts the ball in the cop’s court. If he’s just on a fishing expedition, then he’ll either have to back down and let you go on your way or get a warrant, which will probably involve arresting you. And if the arrest is not justified, his career is on the line. ---
**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, 5:33pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/111 "2012-09-18T17:33:24Z")
I think you may have missed his point. Besides that, the odds of a cop being fired for conducting a warrantless search are somewhere down with those of Gilbert Gottfried becoming the WBO heavyweight champion. ---
**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, 5:36pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/112 "2012-09-18T17:36:53Z")
> [@Clothahump](#): > > Say no. Period. That puts the ball in the cop’s court. If he’s just on a fishing expedition, then he’ll either have to back down and let you go on your way or get a warrant, which will probably involve arresting you. As I said on page 1, if the police have probable cause to search your car, they do not need a warrant. > [@](#): > > And if the arrest is not justified, his career is on the line. They enjoy qualified immunity, which is hard to overcome. Internal punishment is another matter, but PC is no strict definition to all, it is fact dependent on each officer. ---
**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, 5:44pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/113 "2012-09-18T17:44:33Z")
> [@lawbuff](#): > > As I said on page 1, if the police have probable cause to search your car, they do not need a warrant. If they have probable cause, they’re not going to bother asking in the first place, though. ---
**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, 5:54pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/114 "2012-09-18T17:54:58Z")
> [@Really\_Not\_All\_That\_Bright](#): > > If they have probable cause, they’re not going to bother asking in the first place, though. Could be, but CONSENT abrogates any argument about PC when and if it arises. I seem to remember a New Jersey SC some years ago, and if anyone lives in NJ they can verify it if they know, the police can not even ask to search your car, as this suggests a compliance? I may be wrong, but I seem to recall something like that? ---
**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, 6:45pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/115 "2012-09-18T18:45:01Z")
> [@lawbuff](#): > > This is illustrative of the Frieze in the US SC Chambers of the 10 Commandments. > > There is a “History” of the World’s lawgivers, Moses, Hammurabi, etc. I meant the history of how and why it came to be in our documents or building as well as it’s overall historical context. And speaking of context, that matters too. A nice view of the history of law is one thing, slapping the Ten Commandments on your courtroom wall is another. ---
**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, 9:55pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/116 "2012-09-18T21:55:52Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Read my first post again. You mean this?– (from post #75): > [@Really\_Not\_All\_That\_Bright](#): > > There’s a more basic reason you’re wrong, colonial: no jurisdiction actually criminalizes shouting “fire” in a crowded theater. The fact that the Constitution does not protect certain conduct does not mean the conduct is illegal. It means if the government could make it illegal if it wanted to. It hasn’t. It is not plausible that Holmes would fail to mention the impotence of constable and magistrate under conditions which so strongly cry out for the right of the public to protection from physical injury due to malicious prevarication. Here is Holmes’ complete quotation, including part I left out before: “_The most stringent_ protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” “The most stringent” would include doctrine that any act not specifically prohibited is legal. However, I have in contradiction to that already mentioned endangerment and bad tendency, and it now occurs to me to add disturbing the peace and disorderly conduct as well. Exactly what Holmes had in mind I cannot say, but whatever he did have in mind was consolidated under the overarching clear and present danger doctrine, for which “falsely shouting fire” was exemplary. > [@Really\_Not\_All\_That\_Bright](#): > > Well, yes. The point of criminal legislation is to allow people to conform their conduct to the law. That’s why we don’t allow ex post facto laws. So we can’t even charge him with disorderly conduct? Bullshit. ---
**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, 10:09pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/117 "2012-09-18T22:09:09Z")
> [@colonial](#): > > It is not plausible that Holmes would fail to mention the impotence of constable > and magistrate under conditions which so strongly cry out for the right of the public > to protection from physical injury due to malicious prevarication. Um, okay. ---
**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, 10:19pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/118 "2012-09-18T22:19:11Z")
I would think “assault” or “aggravated assault” would work for a bomb threat or falsely shouting “fire”. Putting a person in reasonable fear of harm, or in the alternative, death or serious bodily harm. I agree with \*\*colonial \*\*here. ---
**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, 10:29pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/119 "2012-09-18T22:29:04Z")
> [@jtgain](#): > > I would think “assault” or “aggravated assault” would work for a bomb threat or falsely shouting “fire”. Putting a person in reasonable fear of harm, or in the alternative, death or serious bodily harm. I agree with \*\*colonial \*\*here. I had not thought of assault- thanks for mentioning it. Maybe those Law 2 guys aspiring for a job with the ACLU don’t know as much as they ought to about the public right to public safety. ---
**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, 10:50pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/120 "2012-09-18T22:50:23Z")
> [@jtgain](#): > > I would think “assault” or “aggravated assault” would work for a bomb threat or falsely shouting “fire”. Putting a person in reasonable fear of harm, or in the alternative, death or serious bodily harm. I agree with \*\*colonial \*\*here. You agree with him about what? Unless somebody has actually been convicted of a crime for conduct approximating “shouting ‘fire’ in a crowded theater”, his contention is not true. We’re not talking about bomb threats; that’s something he brought up. Certainly there are existing common law and statutory provisions which _might_ suffice. [Previous page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=5) [Next page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=7)