Civil Liberties Minute: The metaphor of yelling "Fire!" in a theater

[Kurt_and_Hunter]

Civil Liberties Minute: The metaphor of yelling "Fire!" in a theater is not very metaphorical.

It refers to things like actually yelling "Fire!" in a crowded theatre (that is not on fire) done for the purpose of causing mayhem... a speech act with little or no expressive content and certain to cause immediate harm in and of itself right then and right there.

This is distinct from expressive acts that may have severely injurious effects as ideas.

In the famous Haymarket "bombing" some people were killed (mostly by police) including some policemen (killed by other police).

Some people, including a man in Michigan (far from the Chicago haymarket) received death sentences for publishing pamphlets found on some of the people at the meeting/demonstration. Such pamphlets were considered to have inspired the day's events. (None were executed but one committed suicide in prison.)

That is the most famous case (outside of war-time and pornography) of criminalizing how other people might react to your work or expressive actions.

There is no doubt that a lot of folks considered encouraging workers to throw off their chains and such equivalent to yelling Fire! in a crowded theater. But it wasn't.

Ideas sometimes have bloody consequences. If ideas were harmless we wouldn't have to protect free speech at all... who would care enough to repress it?

The only liberties we must protect are those in controversy. The others need no protection.

Crazy backward dude has a perfect right to destroy any books he owns, within the limits of other public safety laws like a fire code. An it will probably have bad effects. (Publishing those Mohamed cartoons had bad effects, but I wouldn't have wanted to prevent publication on that basis.)

And the owners of a building in lower Manhattan have a right to make it a Muslim community center, even if doing so inflames people.

I hope that didn't take more than a minute.

:hi:

[marybourg]

1. Of course the quotation and the principle refers to "FALSELY

shouting fire in a crowded theater".

[Kurt_and_Hunter]

2. You're right, of course. I've edited the OP because it's a useful distinction.

[Swede]

3. Well,then, how about "don't poke the bear"?

Just cause you can do something,doesn't mean you should do it.

[Kurt_and_Hunter]

4. I assume that no one will read the OP as suggesting "crazy backward guy" is behaving well

[ProgressiveProfessor]

11. He is behaving lawfully. Well is another concept entirely

[Toucano]

5. Justice Douglas cited the "fire!" example not because it has "little or no expressive content"

But because it is "speech brigaded with action" (Brandenburg v. Ohio 1969).

Pastor Nutball has said he is "standing up and confronting terrorism" with his burning plans and the incitement to action is clear.
The danger and harm provoked by this speech, as in the "fire!" example, is imminent and real because we are engaged in a war in Afghanistan. The mere discussion of the plan has provoked harmful actions - immediately. This is not the abstract, "marketplace of ideas" protected speech.

We regulate child pornography under the "harm principle" in that the pornographer's self-expression inherently causes direct and measurable harm to others.

Pastor Nutball's self-expression (I would argue also suffers from "little or no expressive content" - I mean, how is that "confronting terrorism"?) is rightly subject to the same restriction.

If there were no troops in Afghanistan, the danger would not be imminent and society could afford the luxury of tolerating his self-expression. Not only can the government rightly restrict this speech but it is obliged to restrict it.

It is possible to have a free society and NOT tolerate absolutely every vile commodity in the marketplace of ideas.

Furthermore, this may fall out of the bounds of case law as Pastor Nutball is also providing direct aid and comfort to the enemy. It's possible that this is unprecedented since the 1969 ruling.

[Terry in Austin]

6. And the right to yell "Theater!" at a crowded fire

Abbie Hoffman's take on it...

B-)

[Recursion]

7. "Fire in a crowded theater" has an unfortunate history

It was in a Supreme Court case that ruled that antiwar protesters could be arrested simply for speaking against a war.

[Toucano]

8. I think you're a tiny bit confused.

The prohibition on falsely shouting fire in a crowded theatre comes from people dying when panic was incited by someone...falsely shouting fire in a crowded theatre.

http://en.wikipedia.org/wiki/Italian_Hall_disaster

Oliver Wendell Holmes later used that logic to argue that military draft protesters could be prosecuted for creating a "clear and present danger" to the government's need to for soldiers.

That decision was subsequently reversed and replaced with "imminent lawless action", a much tougher - but by no means impossible - standard.

[Recursion]

9. Nope

http://en.wikipedia.org/wiki/Schenck_v._United_States

Held: "Defendant's criticism of the draft was not protected by the First Amendment, because it created a clear and present danger to the enlistment and recruiting practices of the U.S. armed forces during a state of war"

Overturned by Brandenburg.

[Toucano]

10. As I said. Thanks!

Falsely shouting fire in a crowded theatre killed people (1913 and earlier) and Holmes argued Scheneck in 1919.

The prohibition against shouting fire itself has nothing to do with the draft and existed before Holmes argued Scheneck. Holmes used that law as an analogy to the draft case.

The Bradenburg decision overturned Scheneck but did not remove the prohibition against falsely shouting fire because they were not the same law. The ruling in Scheneck specifically mentions that the fire law still stands.

You do realize it is still illegal to falsely shout fire in a theatre, right? The two were only related in the extent that Holmes used one to argue the other.

[Recursion]

12. The quote was used in a decision making it illegal to protest the draft

As an example of similarly prohibited speech.

Which was my point. It was a decision none of us (I hope) would be comfortable with anymore.