# 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:** 7
**Author:** ![Learjeff](https://avatars.discourse-cdn.com/v4/letter/l/94ad74/32.png) [@Learjeff](https://boards.straightdope.com/u/Learjeff)\ **Post date:** [September 18, 2012, 10:56pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/121 "2012-09-18T22:56:24Z")
> [@lawbuff](#): > > The word LORD is mentioned in the Constitution. Shall we UNratify it? It’s used in "In the year of our Lord, ". That’s like saying any scientific document that uses BCE is biased by Christianity. ---
**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, 11:42pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/122 "2012-09-18T23:42:29Z")
> [@Really\_Not\_All\_That\_Bright](#): > > You agree with him about what? He agrees with me that bomb threats were illegal from day one even if not specifically prohibited, and he suggests that assault law might have been used to obtain conviction. What do you think he meant? > [@Really\_Not\_All\_That\_Bright](#): > > Unless somebody has actually been convicted of a crime for conduct approximating “shouting ‘fire’ in a crowded theater”, his contention is not true. Nonsense. The issue is whether conviction could be obtained without specific law forbidding the specific act. See assault, endangerment, bad tendency, disturbing the peace, disorderly conduct, and how about malicious mischeif?- have I mentioned that? > [@Really\_Not\_All\_That\_Bright](#): > > 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. Yes we are talking about bomb threats, and here you have changed your tune because in your post #107, in answer to my question about the first fake bomb threat : "(Should we have) Just let the asshole (perpetrator) not only go scott free, but also free to make more fake threats until the legislature gets around to writing a new law? " You replied: “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.” Better not let the ACLU see how you are waffling-- they might not offer you a job after all. ---
**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 19, 2012, 12:33am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/123 "2012-09-19T00:33:48Z")
What the fuck are you talking about? > [@](#): > > Nonsense. The issue is whether conviction could be obtained without specific law > forbidding the specific act. See assault, endangerment, bad tendency, disturbing > the peace, disorderly conduct, and how about malicious mischeif?- have I mentioned that? Okay. Find a conviction that fits your claim, then. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [September 19, 2012, 12:35am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/124 "2012-09-19T00:35:50Z")
> [@HMS\_Irruncible](#): > > The First Amendment begins, “Congress shall make no law…”. It does not say “Congress shall make no implications.” That’s why I don’t need to feel intimidated if the government asks me to censor myself. The Constitution is literally and explicitly on my side. That doesn’t mean I may not feel daunted by the prospect of actually standing up for myself, but the Constitution deals with my legal rights, not with my feelings. Put yourself in Chicago operating a business and Mayor Rahm Emanuel makes a request. Or a TV station gets a request from a member of congress who is connected with the FCC. There is definitely a hidden power behind such requests. ---
**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 19, 2012, 12:46am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/125 "2012-09-19T00:46:30Z")
> [@Magiver](#): > > There is definitely a hidden power behind such requests. Unquestionably, but that doesn’t make them First Amendment violations- absent some implicit threat, at least. It makes them bad policy. ---
**Author:** ![Magiver](https://avatars.discourse-cdn.com/v4/letter/m/4491bb/32.png) [@Magiver](https://boards.straightdope.com/u/Magiver)\ **Post date:** [September 19, 2012, 12:57am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/126 "2012-09-19T00:57:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Unquestionably, but that doesn’t make them First Amendment violations- absent some implicit threat, at least. It makes them bad policy. yes. ---
**Author:** ![j666](https://avatars.discourse-cdn.com/v4/letter/j/9de0a6/32.png) [@j666](https://boards.straightdope.com/u/j666)\ **Post date:** [September 19, 2012, 1:41am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/127 "2012-09-19T01:41:41Z")
> [@colonial](#): > > Previously addressed. > > Go back and read my earlier posts. More carefully this time. > [@colonial](#): > > If all you can do now is parrot yourself then I have no further reply to make. _ **Thank** _ you. > [@PBear42](#): > > 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). I don’t think it’s a hijack … ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 19, 2012, 2:42am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/128 "2012-09-19T02:42:47Z")
> [@Really\_Not\_All\_That\_Bright](#): > > What the fuck are you talking about? I’ve spelled it out as much as it needs to be spelled out. Your problemmo if you still don’t get it. > [@Really\_Not\_All\_That\_Bright](#): > > Okay. Find a conviction that fits your claim, then. Nah. That kind of job needs to be filled by people who have access to law libraries, and know their way around them. Like some Law 2 grind. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 19, 2012, 2:53am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/129 "2012-09-19T02:53:31Z")
> [@PBear42](#): > > 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. I missed this before. My contention is that in Holmes’ _Schenk_ opinion shouting “fire” was \*already \*illegal, and was offered as an example of the kind of case to which the clear and present danger doctrine would apply. ---
**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 19, 2012, 3:12am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/130 "2012-09-19T03:12:33Z")
> [@colonial](#): > > I’ve spelled it out as much as it needs to be spelled out. Your problemmo > if you still don’t get it. It’s not really my problem that you keep making bizarre and apparently random allusions to the ACLU. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 19, 2012, 3:50am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/131 "2012-09-19T03:50:37Z")
> [@Really\_Not\_All\_That\_Bright](#): > > It’s not really my problem that you keep making bizarre and apparently random allusions to the ACLU. Oh. You’re _not_ the ACLU type? My bad! ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [September 19, 2012, 7:36am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/132 "2012-09-19T07:36:56Z")
> [@colonial](#): > > My contention is that in Holmes’ _Schenk_ opinion shouting “fire” was \*already \*illegal, and was offered > as an example of the kind of case to which the clear and present danger doctrine would apply. Not quite. It was offered as an example of how the right of free speech is not absolute. That’s all. Earlier, you argued more. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 19, 2012, 11:46am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/133 "2012-09-19T11:46:33Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. I haven’t fully read all of the exchanges in this thread, but it was my understanding that you contended that a person couldn’t be convicted of falsely shouting fire in a theater because there was no specific law against that, and that an effort to prosecute a person for that would be an ex post facto law. Even in the absence of any prior convictions for falsely shouting fire, doesn’t the point still stand? ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 19, 2012, 12:59pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/134 "2012-09-19T12:59:56Z")
So basically we already have anti-blasphemy laws? It’s illegal to make fun of Islam? But not say, Christianity or Buddhism? ---
**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 19, 2012, 1:17pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/135 "2012-09-19T13:17:34Z")
> [@jtgain](#): > > I haven’t fully read all of the exchanges in this thread, but it was my understanding that you contended that a person couldn’t be convicted of falsely shouting fire in a theater because there was no specific law against that, and that an effort to prosecute a person for that would be an ex post facto law. No, I contended that Holmes wasn’t saying that shouting fire in a crowded theater was illegal. It’s not necessarily a big distinction, though; I don’t think a person could be convicted of anything for doing so, unless someone was actually injured. ---
**Author:** ![adaher](https://avatars.discourse-cdn.com/v4/letter/a/dec6dc/32.png) [@adaher](https://boards.straightdope.com/u/adaher)\ **Post date:** [September 19, 2012, 2:28pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/136 "2012-09-19T14:28:59Z")
From what I understand of the case history, speech itself cannot be prosecuted. The damage that results from that speech can be, if the speech was intended to cause harm. Libel, incitement, etc. Speech that is not intended to cause incitement but does because someone else wants to silence the speaker is still protected speech. The crime is committed by the heckler, not the speaker. Which would be 100% clear if there was a riot in Salt Lake City over Parker and Stone’s “Book of Mormon” play. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 19, 2012, 3:22pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/137 "2012-09-19T15:22:50Z")
> [@PBear42](#): > > Not quite. It was offered as an example of how the right of free speech is not absolute. That’s all. Earlier, you argued more. I do not see what you are getting at here, and I do not see where anything I have said is in conflict with anything else I have said. Earlier you cited my post #78 where I suggested that a person who falsely shouted “fire” might be tried under endangerment law. I also suggested Holmes must have had endangerment or some other doctrine such as bad tendency in mind when he characterized the “fire” perp as beyond the protection of free speech doctrine. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 19, 2012, 3:39pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/138 "2012-09-19T15:39:54Z")
> [@Really\_Not\_All\_That\_Bright](#): > > …I don’t think a person could be convicted of anything for doing so, unless someone was actually injured. Well, at least you are yielding a little ground here- the guy who yells “fire” might be liable for criminal penalty after all. However, I would really like to know how the Law1-2-3 Professoriate teases out a distinction which would allow an obviously endangering act to go unpunished if no one is hurt, despite the fact that endangerment and other non-specific, flexible law is availble for use against those who take pleasure from putting other people at physical risk. ---
**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 19, 2012, 3:41pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/139 "2012-09-19T15:41:24Z")
I think the point is that yelling fire was not the incident at hand in the case. It was about giving out leaflets opposing the draft during WWI. ---
**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 19, 2012, 4:01pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/140 "2012-09-19T16:01:05Z")
> [@colonial](#): > > Well, at least you are yielding a little ground here- the guy who yells “fire” might be liable > for criminal penalty after all. > > However, I would really like to know how the Law1-2-3 Professoriate teases out a distinction > which would allow an obviously endangering act to go unpunished if no one is hurt, despite > the fact that endangerment and other non-specific, flexible law is availble for use against > those who take pleasure from putting other people at physical risk. Okay, fair question. The first reason is the rule of lenity. Because the purpose of criminal law is to allow people to conform their conduct to the standards of the community, people are typically not punished for actions that aren’t clearly defined as crimes. So, the first guy who called in a bomb threat would probably not be culpable if all he said was “there is a bomb in your building”. If he said “I’m going to blow up your building”, that would probably be actionable like any other threat of physical harm. The second reason is that the law doesn’t prohibit all wrongful conduct. Today, it’s somewhat difficult to image what actual harm _would_ result from shouting fire in a crowded theater. People injured in a stampede, maybe. The point is that just putting other people at risk is not necessarily a crime. I put people at risk constantly by driving a car, smoking, using a cellphone near a gas station, and so on. That doesn’t mean I am criminally culpable. [Previous page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=6) [Next page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=8)