# 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:** 8
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [September 19, 2012, 6:15pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/141 "2012-09-19T18:15:17Z")
Can I jump in to the tangent that’s going on between colonial and RNATB? 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. All this talk of whether it could be prosecuted as endangerment, or whatever other existing laws, has no bearing on any of this. It doesn’t matter. If you want to discuss whether falsely yelling “fire” in a crowded theater could be a crime, feel free to do that, but please take it to another thread. It’s not pertinent to this one. ---
**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, 7:25pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/142 "2012-09-19T19:25:43Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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”. I disagree. If I falsely say “there is a bomb in your building” have I not put you in reasonable fear of immediate harm, or assaulted you? ---
**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, 8:13pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/143 "2012-09-19T20:13:01Z")
> [@colonial](#): > > 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. > [@Really Not All That Bright](#): > > 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. In the interest of public safety it is 100% obviously certain that responsible authority would be compelled to assume notice of the presence of a bomb constituted a threat to detonate it. It is also fair to assume any perp would know that. Therefore lenity would not apply for the reasons you give. > [@Really Not All That Bright](#): > > …Today, it’s somewhat difficult to image what actual harm would result from shouting fire in a crowded theater. Difficult to imagine? Nothing could be easier! The performance is at least disrupted for paying customers. Must we have a law specifically forbidding such disruption before criminal penalty can sought? Is there no flexible statute available? There is sure to be. > [@Really Not All That Bright](#): > > People injured in a stampede, maybe… And here you concede there is a more serious threat than mere disruption. In the interest of public safety authority should be entitled to assume the threat is real, and should be entitled to flexible use of existing law to prosecute anyone who makes such a threat. > [@Really Not All That Bright](#): > > The second reason is that the law doesn’t prohibit all wrongful conduct… > …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. (Cellphone near a gas station?) The risks inherent in the responsible pursuit of daily life routine is not relevant to our conversation. We are discussing conduct whose sole purpose is creating threat to public safety. ---
**Author:** ![Blakeyrat](https://avatars.discourse-cdn.com/v4/letter/b/ecd19e/32.png) [@Blakeyrat](https://boards.straightdope.com/u/Blakeyrat)\ **Post date:** [September 19, 2012, 9:37pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/144 "2012-09-19T21:37:09Z")
> [@grude](#): > > [Google REJECTS White House request to take down anti-Islam video that sparked world-wide protests | Daily Mail Online](http://www.dailymail.co.uk/news/article-2203762/Google-REJECTS-White-House-request-anti-Islam-video-sparked-world-wide-protests.html?ito=feeds-newsxml) > > So the US government can make “requests” to private companies to remove speech? Because as we all know the government certainly has no power, and there is nothing implied at all with a gentle request. Just like the well dressed gentleman who compliments your store and suggests what a shame it would be if anything bad would happen to it. Sure why not? As long as it’s clear it’s a request and not an ultimatum. The Government has the same rights as any other entity. ---
**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, 11:44pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/145 "2012-09-19T23:44:52Z")
> [@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. What s/he said. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 20, 2012, 1:38am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/146 "2012-09-20T01:38:41Z")
> [@CurtC](#): > > Can I jump in to the tangent that’s going on between colonial and RNATB? Yeah, but I hope you have something more worthwhile to say next time. > [@CurtC](#): > > Holmes was not saying that falsely yelling “fire” in a crowded theater was illegal; He did not need to because conduct such as falsely shouting fire in a crowded theater is so flagrantly at odds with the needs of public safety that it surely not have been legal. No code in history could have had a loophole big enough to allow such an act to go unpunished. Acts deserving to be criminalized are too innumerable to list one by one, and that is why somewhat less exact law such as that forbidding endangerment is on the books. > [@CurtC](#): > > he wasn’t even saying it should be illegal. See above. > [@CurtC](#): > > He was exploring the reasonable limits on freedom of speech that could be codified in the law. OK, although falsely shouting fire in a crowded theater was not meant to exemplify a borderline case, but an extreme one. > [@CurtC](#): > > 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. Not OK. He was saying that falsely shouting fire in a crowded theater was an extreme example of what it means to precipitate “a clear and present danger”. He goes on to say Congress (and viz all legislatures) have a right to prevent such evils, but that is not the same as saying that each evil must be individually forbidden, and it not the same as saying that falsely shouting fire in a crowded theater was legal absent specific prohibition. > [@CurtC](#): > > All this talk of whether it could be prosecuted as endangerment, or whatever other existing laws, has no bearing on any of this. Talk of whether it could be prosecuted as endangerment, or whatever other existing laws is of the essence. > [@CurtC](#): > > It doesn’t matter. If you want to discuss whether falsely yelling “fire” in a crowded theater could be a crime, feel free to do that, but please take it to another thread. It’s not pertinent to this one. If you don’t like this thread then go start another thread. ---
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [September 20, 2012, 4:18am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/147 "2012-09-20T04:18:14Z")
> [@colonial](#): > > Talk of whether it could be prosecuted as endangerment, or whatever other existing laws is of the essence. It is of the essence to this little hijack you’ve taken us on, but it’s tangential to the discussion about the First Amendment. Holmes has already said that any law that forbids falsely yelling “fire” in a crowded theater would not be a violation of the F.A., so any further talk about _which_ laws would make it illegal are off-topic. ---
**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 20, 2012, 1:07pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/148 "2012-09-20T13:07:06Z")
> [@colonial](#): > > Difficult to imagine? Nothing could be easier! The performance is at least disrupted > for paying customers. Must we have a law specifically forbidding such disruption before > criminal penalty can sought? Is there no flexible statute available? There is sure to be. This is circular reasoning. You are sure there must be such a law, because you think there should be one. In any event, talking during a performance is also disruptive. Is it a crime? ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 20, 2012, 3:06pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/149 "2012-09-20T15:06:14Z")
> [@CurtC](#): > > It is of the essence to this little hijack you’ve taken us on, but it’s tangential to the discussion about the First Amendment… > …so any further talk about _which_ laws would make it illegal are off-topic “Shouting fire in a crowded thater” was raised in connection with OP by a sitting Supreme Court Justice, making it, in fact, of the essence. > [@CurtC](#): > > …Holmes has already said that any law that forbids falsely yelling “fire” in a crowded theater would not be a violation of the F.A.,… He said no such thing. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 20, 2012, 3:24pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/150 "2012-09-20T15:24:32Z")
> [@Really\_Not\_All\_That\_Bright](#): > > This is circular reasoning. You are sure there must be such a law, because you think there should be one. It would be circular if it was a deduction, but it is not. I was stating a premise about something I believe must be inherent in the nature of all law codes. > [@Really\_Not\_All\_That\_Bright](#): > > In any event, talking during a performance is also disruptive. Is it a crime? Technically maybe, but a category of trivial crime seldom reported or prosecuted. Driving 61 in a 60 would be another example. ---
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [September 20, 2012, 4:00pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/151 "2012-09-20T16:00:26Z")
> [@colonial](#): > > > [@CurtC](#): > > > > Originally Posted by CurtC > > …Holmes has already said that any law that forbids falsely yelling “fire” in a crowded theater would not be a violation of the F.A.,… > > 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. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 20, 2012, 4:59pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/152 "2012-09-20T16:59:10Z")
> [@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. ---
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [September 20, 2012, 6:51pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/153 "2012-09-20T18:51:33Z")
> [@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. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 20, 2012, 8:34pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/154 "2012-09-20T20:34:43Z")
> [@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): > [@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. ---
**Author:** ![CurtC](https://avatars.discourse-cdn.com/v4/letter/c/ce73a5/32.png) [@CurtC](https://boards.straightdope.com/u/CurtC)\ **Post date:** [September 20, 2012, 9:35pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/155 "2012-09-20T21:35:10Z")
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. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 20, 2012, 10:44pm UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/156 "2012-09-20T22:44:53Z")
> [@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. > [@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. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [September 21, 2012, 4:13am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/157 "2012-09-21T04:13:21Z")
Let’s recall how we got started on this tangent. It was [Post #37](http://boards.straightdope.com/sdmb/showpost.php?p=15496892&postcount=37), in which you asserted (in response to **Ibn Warraq** ) that [Schenck](http://www.law.cornell.edu/supct/html/historics/USSC_CR_0249_0047_ZO.html) (link to full opinion) ruled that falsely shouting fire in a theatre is illegal. See also Posts [#43](http://boards.straightdope.com/sdmb/showpost.php?p=15497010&postcount=43) and [#77](http://boards.straightdope.com/sdmb/showpost.php?p=15500781&postcount=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. ---
**Author:** ![colonial](https://avatars.discourse-cdn.com/v4/letter/c/34f0e0/32.png) [@colonial](https://boards.straightdope.com/u/colonial)\ **Post date:** [September 22, 2012, 2:54am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/158 "2012-09-22T02:54:23Z")
> [@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. > [@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? > [@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. > [@PBear42](#): > > In any event, your original assertion was wrong. Nice try. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [September 22, 2012, 4:42am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/159 "2012-09-22T04:42:30Z")
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. ---
**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 22, 2012, 5:15am UTC](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864/160 "2012-09-22T05:15:35Z")
> [@](#): > > 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. [Previous page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=7) [Next page](https://boards.straightdope.com/t/so-how-is-this-not-a-violation-of-the-1st-amendment/634864.md?page=9)