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.
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.
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.
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.
(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.
Yeah, but I hope you have something more worthwhile to say next time.
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.
See above.
OK, although falsely shouting fire in a crowded theater was not meant to exemplify a borderline case,
but an extreme one.
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.
Talk of whether it could be prosecuted as endangerment, or whatever other existing laws is of the essence.
If you don’t like this thread then go start another thread.
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.
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?
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.
Technically maybe, but a category of trivial crime seldom reported or prosecuted.
Driving 61 in a 60 would be another example.
“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.
I was confllated on your other, inaccurate contention that falsely shouting
fire was legal at the time of *Schenk *with the accurate observation above.
W-e-l-l-l I think there is enough ambiguity in the following
to draw the inference I drew:
(from post #141):
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.
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.
Sorry to hear you are among those who are unable to grasp the obvious.
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.
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.
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.
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.
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?
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.
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.
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.