pageok
pageok
pageok
Shouting Fire in a Crowded Theater:

People often argue some speech is unprotected by analogizing to shouting fire in a crowded theater. (Here's the most recent example in the comments.)

But of course shouting fire in a crowded theater is often constitutionally protected. For instance, if there is a fire, shouting fire may be good. (It may sometimes not be good, if more people die in the panic than would have died from the fire if one had spoken more calmly -- but even then, I'm pretty sure that it would be constitutionally protected.)

And in fact the line from Justice Holmes in Schenck v. U.S. is "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." That "falsely" is what's doing the work, both in Justice Holmes's hypothetical, and in how such a false shout would be treated by First Amendment law today: Knowingly false statements of fact are usually constitutionally unprotected, whether because they constitute libel, fraud, perjury, and false light invasion of privacy; that would presumably apply to knowing falsehoods that cause a panic.

If the statement is not knowingly false, though, the analogy breaks down. The comment I linked to, for instance, was "Given the history and probabl[e] reactions, how is yelling 'Allahu Akbar' in a Jewish wedding different from yelling fire in a theater?" If the argument is that the speech may lead to violence against the speaker, then the arguer needs to discuss the heckler's veto cases. If the argument is that the speech will be misperceived as a terrorist attack, so the panic may indeed flow from a false perception on the listener's part, the arguer needs to explain why the perception is indeed likely and why the speech may be punished even though there's little reason to think that the speaker knew the speech would be thus misperceived (or even knew there was a high probability of misperception). If the argument is that the speech may be seen as threatening, the arguer has to explain why it passes the threshold required by the threat exception to the First Amendment. But a casual analogy to "shouting fire in a crowded theater" doesn't get us very far.

martinned (mail) (www):
Re 1A, though otherwise slightly off-topic: It may be interesting to note this follow-up to the Atheist bus-ads story that was posted on VC recently.

Man refuses to drive 'no God' bus

A Christian bus driver has refused to drive a bus with an atheist slogan proclaiming "There's probably no God".
(...)
First Bus said in a statement: "As a company we understand Mr Heather's views regarding the atheist bus advert and we are doing what we can to accommodate his request not to drive the buses concerned."

It added: "As an organisation we don't endorse any of the products or sentiments advertised on our buses.
(...)
1.16.2009 2:09pm
martinned (mail) (www):
And concerning the shouting of fire, isn't the point usually that doing so is more akin to "an act", rather than "speech"? If so, it wouldn't matter whether there really is a fire. (Or rather, if there isn't one, it would be doubly unprotected.)
1.16.2009 2:13pm
Duffy Pratt (mail):
Of course, if an actor yells "Fire!" in the theatre as a part of the play, then it would also likely enjoy constitutional protection. I guess that's why the second part of Holmes' sentence is there -- causing the panic.

And also, this was just an example of Holmes' ability to create a wonderful and catchy image. There is no false fire in a theatre case so far as I know. And I'm also not aware of any laws specifically prohibiting this sort of behavior.
1.16.2009 2:16pm
martinned (mail) (www):
@Duffy Pratt: Not "specifically prohibiting", but I imagine, given the right set of circumstances, charges of reckless endangerment or even negligent homicide might be possible.
1.16.2009 2:19pm
Eli Rabett (www):
Well, let's see, the wedding party includes a number of Moslems, when the groom crunches the glass and the Jewish folk shout their congratulations, the Moslem guest shout Allahu Akbar (God is great). Everyone then wishes each other much joy.

For some reason Eugene appears to think that God is lousy.
1.16.2009 2:28pm
methodact:
...shout Allahu Akbar...
I'm still trying to get my head around this.
1.16.2009 2:51pm
Dan Hamilton:

but I imagine, given the right set of circumstances, charges of reckless endangerment or even negligent homicide might be possible.


But notice everything is AFTER THE ACT. No prior restrant.

Yelling FIRE falsly is not protected speach. You must face the consequences. But nobody stops you from yelling it.

This is a destinction that many people overlook.

You have fredom of speach. If the speach comes under the 1A PROTECTIONS then there are no consiquences but if it is not protected speach they all the consequences fall on you.

It is all after the fact.
Not much help with terriorists is it.
Not much help with lying politicians trying to destroy the people they are running against in the last days.
Not much help if you are well known.

You have to just grin and bear it.

Any reporter or photographer who comes within 10 ft of someone should be fair game. Hit them, kick them, knock them down, destroy their equipment, but you can't kill them.
10 ft not much to ask. A little respect. Otherwise their arrongance and pushyness knows no bounds.
1.16.2009 2:51pm
Grant Gould (mail):
People may be forgetting the "falsely" in Schenck because in fact the contents of Schenck's pamphlet were not false. Your argument proves too little.
1.16.2009 2:55pm
martinned (mail) (www):
@Dan Hamilton: The question was whether, constitutionally protected or not, there were any laws possibly outlawing yelling fire in a crowded theatre. There are. Prosecuting someone for yelling fire when there was, in fact, a fire is a bit more hypothetical, since it is difficult to see why any prosecutor would want to do that, but I guess with a bit of creativity it is still possible to conjure up a set of circumstances, for example if it were possible to show that the shouting caused a panic that led to many more casualties than would otherwise have occurred.

Prior restraint is a separate issue, and I'm afraid I don't see the connection. (That goes for most of your comment, I'm afraid.)
1.16.2009 2:58pm
einhverfr (mail) (www):
I can think of cases where shouting "Fire!" in a crowded theater might be Constitutionally protected even if the theater was not on fire (for example, suppose such a line was a legitimate part of the performance). The third part of Holmes' analysis is also relevant: the intent to cause panic.
1.16.2009 2:58pm
Norman Yarvin (www):
Fire in a crowded theater is not the sort of analogy that has much traction, these days. If theatergoers these days heard someone shouting "Fire!", they'd look around and wonder if they really had to leave, or maybe even say, in Beavis-and-Butthead style, "Hey, cool, fire". And they'd be right: modern theaters are sprinkler-equipped, commonly made of reinforced concrete, and furnished with fire-retardant seating, not to mention having abundant exits. They're not like the tinderboxes of a hundred years ago, where people really did die en masse from fires, and where yelling "Fire!" could generate a genuine panic.
1.16.2009 2:59pm
martinned (mail) (www):
Concering speech vs. act, it may be useful to quote a bit more of Schenk, which, I think, supports my statement above that the falsity is not at the core of Justice Holmes' point:

"the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206 S., 25 Sup. Ct. 3. 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. Buck's Stove &Range Co., 221 U.S. 418, 439 , 31 S. Sup. Ct. 492, 55 L. ed. 797, 34 L. R. A. (N. S.) 874. 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."
1.16.2009 3:02pm
Yankev (mail):
Suppose you were to yell "Foyer" in a crowded theater lobby, when there was no fire?
1.16.2009 3:09pm
My Middle Name Is Ralph:

Prosecuting someone for yelling fire when there was, in fact, a fire is a bit more hypothetical, since it is difficult to see why any prosecutor would want to do that, but I guess with a bit of creativity it is still possible to conjure up a set of circumstances, for example if it were possible to show that the shouting caused a panic that led to many more casualties than would otherwise have occurred.



Perhaps an evil law student after reading Shcenk thinks he can avoid prosecution by first lighting a match then shouting "fire!"?
1.16.2009 3:13pm
Bill Sommerfeld (www):
Norman Yarvin: Don't be so sure.

As a particularly tragic recent counterexample, one hundred people died in a stampede nightclub in Rhode Island in 2003.
1.16.2009 3:13pm
Dilan Esper (mail) (www):
Steve Martin once had a silly joke in his stand up routine about how he was once arrested for yelling "Movie" in a crowded firehouse.
1.16.2009 3:21pm
Ariel:
Eugene,

I feel honored to be cited on your front page.

I was aiming for the second of the three situations you indicated above, as I clarified in a later comment on that thread. If the standard is as you've indicated, I would think it would not be all that hard. (1) "explain why the perception [of a terrorist attack] is indeed likely"; and (2) "why the speech may be punished even though there's little reason to think that the speaker knew the speech would be thus misperceived (or even knew there was a high probability of misperception)".

Yelling Allahu Akbar at Jewish events is likely to be perceived as a terrorist attack. The Seattle Jewish center terrorist, inter alia, yelled Allahu Akbar as he was murdering his victims. Kuntar, IIRC, also yelled it as he was bashing in the four year old's head.

I'm surprised that the speaker's knowledge of potential misperception is an element, but I'll defer to your greater knowledge here. It seems odd to me, because if someone is mentally retarded, say, and yells something threatening but doesn't understand it, it still causes whatever the harm is. Nevertheless, assuming you are right, assuming it's an objective standard (reasonable man) - the speaker certainly should have known if he was paying attention. If he was merely trying to annoy the guests, maybe he would play a Christian hymn, so I suspect that under a subjective standard, the speaker would still be out of luck.
1.16.2009 3:27pm
einhverfr (mail) (www):
Bill Sommerfeld:

Of course in that case, there really was a fire.
1.16.2009 3:30pm
Hoosier:
What if I shout "Theater!" in a crowded fire station? (IANAL)
1.16.2009 3:35pm
Happyshooter:
My reading is that the shouting in this case is an exact analogy to shouting fire falsely in a crowded setting.

Here, the attendees were likely drinking, the venue was likely crowded, the attendees were mostly jewish, and statements of this type are commonly shouted before an attack on jews (suicide or otherwise).

Yep, perfect example.
1.16.2009 3:35pm
Happyshooter:
Ariel beat me to it, and said it better.
1.16.2009 3:36pm
einhverfr (mail) (www):
Ariel:

The difference is that in this case, there was no objective harm. No danger of imminent lawless action, or physical harm to the participants of the wedding. The only way this is severable from Brandenburg is that Brandenburg was advocating violence in the abstract to people who agree with him (towards Blacks and Jews, BTW), and thus IMO, more likely to cause harm by the word themselves.

I.e. if I yell to a bunch of racists "Kill the niggers.... We intend to do our part" that is entirely protected even if it carries a risk that somebody will, in act, try to go out and kill black folk. What it doesn't protect (under Brandenburg) is for me to say "We must start killing the niggers right now! How many of you have guns? Ok, by tomorrow, I want you all to tell me how many you have killed!" at least where there is a reasonable expectation that people will follow these instructions.

Words can always cause harm. But the standard tends to be that of imminent lawless action. Restricting the expression of ideas is not a legitimate government interest in the US. Furthermore the subjective harm based on a perception of something is not to be regulated by itself either, IMO. For example, wearing the Basque national symbol at a synagogue, even if it is a form of swastika, would not be banned just because people find it alarming or annoying.
1.16.2009 3:41pm
David M. Nieporent (www):
@Grant, @Martinned: the problem with both of your arguments is that the actual holding of Shenck is no longer good law. So either we consider Holmes' famous quote in isolation or we ignore it altogether.
1.16.2009 3:48pm
Norman Yarvin (www):
That Rhode Island fire actually illustrates my point: people there didn't panic at first, even when they saw the fire starting and spreading; only when they actually were at risk of being engulfed by smoke and flame did they panic. If seeing fire didn't provoke panic, shouting fire certainly wouldn't.
1.16.2009 3:48pm
einhverfr (mail) (www):
Happyshooter:

Were people injured in this case?

Shouting fire in a crowded theater in order to cause panic is a case where one might be held responsible for the OUTCOME where people were injured. Furthermore the statute in question does not require a likelihood of serious harm from the mere uttering of words. Holmes' example had three components:

1) Shouting something alarming
2) Falsely
3) Causing a panic (in which people were likely physically harmed).

Unless one can show all three of these points, I think the analogy is inapt. Furthermore it is only in line with criminal law today to the extent that the speech itself causes an imminent threat of harm or lawless action. In this case, you only have a partial match.

FWIW, I think one could have a law barring intentional disruption of weddings, funerals, and the like. However, making it a felony seems rather odd to me, and in particular making a mere attempt to annoy someone through pure speech on the basis of race, religion, etc. a felony seems well outside accepted jurisprudence, but IANAL.

This being said, the use of the intercom in this case to broadcast the message both increases its disruptiveness/nuisance quality, and also reduces the imminence of the threat component. And while I could see a lawsuit based on the matter, I have a hard time seeing criminal prosecutions.
1.16.2009 4:33pm
DennisN (mail):
Considering the fairly common shout of "Allahu Akhbar" by Islamic terrorists while committing their evil, and who is a common recipient of their evil, shouting it at a Jewish wedding can at least be construed as a reckless act.

I often carry a concealed firearm. If I heard someone shouting Allahu Akhbar at a Jewish wedding, I would probably be evaluating the situation, attempting to decide whether I need to engage an attacker, provide covering fire while my wife escapes out the door, or have another glass of champaign. Someone who is less prudent might go off half cocked.

In short, someone could get hurt. Rather than "falsely," it may be more like stupidly shouting "Cinema" in the crowded fire station. {rolling eyes} I don't think it's protected speech; it's arguably reckless endangerment.
1.16.2009 4:58pm
Pete Guither (mail) (www):
I've always hated the "fire in a crowded theatre" line. I'm all for a few idiots dying in theatres (is this really something that happens a lot?) to protect free speech.

And whenever somebody trots out the old "yelling fire in a crowded theatre line" I know they're about to explain to me that the First Amendment doesn't really protect free speech and that Congress can pass all the laws prohibiting it that it wants.
1.16.2009 5:16pm
gattsuru (mail) (www):
Schnenck was highly limited by Brandenburg, to the point where Schnenck is a soundbite rather than relevant. The question of relevance is not whether there is a clear and present risk of harm or danger (as Schnenck ruled), but whether the speech is intended and directed to result in immediate lawless action, sooner than a police response could be summoned (as Brandenburg held).

Under Brandenburg, not only can you shout fire or even shout fire unknowingly falsely, but you can shout fire knowingly falsely if your actions were not directed to create lawless action, or even if the speech did create lawless action but did so slowly enough for an officer of the law to respond.

Shouting Alahu Ackbar in a Jewish wedding could be reasonably construed to be likely to result in immediate lawless action (a panic), given the sort of irregularity of the Takbir being presented in a largely Jewish setting and the (stereotyped) tendency of violent Islamic extremists and relatively few other people commonly present in a Jewish wedding to use the phrases.

That said, the law's probably unconstitutionally overbroad even though this particular act could be constitutionally banned (as a disruption of civic ceremonies, for example), so it's not particularly relevant.
1.16.2009 5:19pm
gasman (mail):
from Wikipedia: Alahu Ackbar; Usually translated "God is great" or "God is [the] greatest," it is a common Arabic expression, used as both an informal expression of faith and as a formal declaration.

One thing each mono-theist must remember is that by definition they each believe in the same god (though they may differ in how they interpret his personality and wants). Thus, to reject the expression alahu ackbar of a muslim, is to reject their own god.
1.16.2009 7:08pm
jviss (mail):
Eugene says: "Knowingly false statements of fact are usually constitutionally unprotected, whether because they constitute libel, fraud, perjury, and false light invasion of privacy; that would presumably apply to knowing falsehoods that cause a panic."

I confess I am not an attorney, nor have I read this decision ('though I enjoy the blog on a daily basis); however, this statement is patently incorrect. The knowing statement of falsehoods is routine, and routinely protected. Consider storytellers, braggards, novelists, painters, screenwriters, poets, actors, - teachers, and, of course, mainstream medai journalists. Truth has very little bearing on the first amendment.
1.16.2009 7:10pm
einhverfr (mail) (www):
Gasman: Not all of us are monotheists.

I am a polytheist, for example.
1.16.2009 7:48pm
Eugene Volokh (www):
Jviss: These are not treated as false statements of fact. "And then Batman told Catwoman ..." is not a factual assertion (not even to my 5-year-old), even though it's cast as such within the conventions of the genre.

So truth does has a great deal of bearing on First Amendment protection, which is why libel, perjury, fraud, false light invasion of privacy, and some other similar conduct is punishable. If a statement is a false statement of fact (which means, among other things, that it's likely to be perceived as a statement of fact and not of fiction), and is said by the speaker with knowledge that it's false or that it's quite likely to be false, then it's often -- though not always (see the post linked to in my post above) -- constitutionally punishable.
1.16.2009 7:56pm
Tritium (mail):
All laws must be written in pursuance to the Constitution, and cannot be contrary to it. If such a law infringes upon

Liberty is the freedom to think or act without being constrained by necessity or force (Free will).

The wisest of all the fathers of our Republic once said, not for his own day alone but for all generations to come after him, in the solemn admonitions of the Farewell Address. It was to us that Washington spoke when he said:


"The basis of our political systems is the right of the people to make and to alter their constitutions of government; but the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.... Towards the preservation of your government, and the permanency of your present happy state, it is requisite, not only that you steadily discountenance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments as of other human institutions; that experience is the surest standard by which to test the real tendency of the existing constitution of a country; that facility in changes, upon the credit of mere hypothesis and opinion, exposes to perpetual changes, from the endless variety of hypothesis and opinion."


Laws in a land of Liberty restricts no man, only holds them responsible should others be harmed by such an act.

Take what you give, give what you take.
1.16.2009 8:00pm
Michael T:
I saw Penn &Teller live once. They had a bit where Penn shot a gun at Teller who would "catch" the bullet with his teeth. In order to "get it right," they did a "practice" round where Penn would yell "Fire" rather than shoot the gun. He proceeded to yell "Fire" and then turned to the audience and said, "I always wanted to yell 'Fire' in a crowded theater."
1.16.2009 8:11pm
JohnKT (mail):
The best example I ever heard of shouting fire in a crowded theater was at a performance of Stoppard's Rosencranz and Guildenstern Are Dead, at the Geary Theater I think, in San Francisco, many many years ago.

At one point in the play, Rosencranz (or was it Guildenstern - they are hard to tell apart) yells FIRE! Guildenstern (or was it Rosencranz?) asks "What did you yell "fire" for? The other answered "I just wanted to see if I could yell fire in a crowded theater."

It was ad libbed, it is not in Stoppard's text.

It brought the house down.

Vraiment, Werklich, Verdad!
1.16.2009 8:47pm
Bob from Ohio (mail):

Thus, to reject the expression alahu ackbar of a muslim, is to reject their own god.


I don't think so.

Its a rejection of the speaker.
1.16.2009 10:40pm
SPO:
This seems pretty easy. It's disorderly conduct.
1.16.2009 10:46pm
Rich H:
I always thought the "fire in a crowded theater" argument was a red herring. There is no 1st amendment right in a theater - at least a privately owned one - unless you are the owner.

If I own a theater can I require, as a condition for any who choose to enter, that I reserve the right to expel them for shouting ANYTHING in my theater? If so, then these guests - whether they paid to get in or not - voluntarily suspend their free speech rights when they go inside.
1.16.2009 11:21pm
Rich H:
I always thought the "fire in a crowded theater" argument was a red herring. There is no 1st amendment right in a theater - at least a privately owned one - unless you are the owner.

If I own a theater can I require, as a condition for any who choose to enter, that I reserve the right to expel them for shouting ANYTHING in my theater? If so, then these guests - whether they paid to get in or not - voluntarily suspend their free speech rights when they go inside.
1.16.2009 11:22pm
David M. Nieporent (www):
Rich H: the "fire in a crowded theater" argument is not about whether someone who does it can be "expelled," but whether he can be prosecuted.
1.16.2009 11:39pm
J. Aldridge:
First Amendment has nothing to do with general false statements or protecting speech in general. It is all about the freedom to freely criticize or discuss concern of government without the threat of being accused of seditious libel for doing so.

See Original Meaning: Freedom of Speech and the Press
1.17.2009 12:17am
Rich H:
David,
Whether someone can be prosecuted for shouting "fire" is an interesting topic for discussion. However I was responding to the concept that one had a "constitutional right" to do so. In other words, if you say something offensive to me on my property and I tell you to leave, can I be prosecuted?
1.17.2009 2:48am
Visitor Again:
Knowingly false statements of fact are usually constitutionally unprotected, whether because they constitute libel, fraud, perjury, and false light invasion of privacy; that would presumably apply to knowing falsehoods that cause a panic.

Eugene, you have it the wrong way round. To the contrary--as I noted in my comment on the post to which you link--false statements of fact are usually constitutionally protected. In that earlier comment, I wrote, "The U.S. Supreme Court's holdings have always insisted that before liability may be imposed on false speech, the falsehood of the speech must work some discrete harm beyond the mere airing of a falsehood--as in defamation, fraud, false statements to official investigators like police or regulatory agents and so on." I supported that statement with a long quotation from New York Times Co. v. Sullivan. The reason is that there is usually no clear distinction between statements of fact and statements of opinion.

Eugene Volokh, who was schooled in communism but changed his tune to become a radical right-winger after moving to this country, consistently uses public facilities obtained through his employment at a state-funded institution to make knowingly false statements on his blog about the law.

I know that sentence contains false statements of fact. If I stated it in isolation on the Internet, it would still be constitutionally protected. You might sue me over it, but I bet I'd prevail on constitutional grounds.
1.17.2009 4:34am
Jeff Walden (www):
Duffy Pratt:

I don't know about any actual instances of a false shout of "Fire!" in a crowded theater, although I highly suspect there must be some instance of it happening, else I doubt it would have achieved its enduring fame. Nevertheless, would you accept the Italian Hall disaster as a near substitute? The pertinent details (overcrowding, limited egress, no actual fire) are all the same, so I think it's more than adequate for demonstrating plausibility.
1.17.2009 7:03am
Hoosier:
EV

Jviss: These are not treated as false statements of fact. "And then Batman told Catwoman ..." is not a factual assertion (not even to my 5-year-old), even though it's cast as such within the conventions of the genre.

I hate to get all Wittgensteinian, but I have a serious man-crush on the guy. And, besides, I thin it's relevant. So: The statement "And then Batman told Catwoman ..." can be a statement of fact even outside of the conventions of story-telling. It would be (part of) a factual response, for instance, to a question such as "What happened in the movie last night after I fell asleep?" Provided it is an accurate description of what happened in the movie, of course.

Only the specific context gives words meaning. No?
1.17.2009 10:25am
David M. Nieporent (www):
Whether someone can be prosecuted for shouting "fire" is an interesting topic for discussion. However I was responding to the concept that one had a "constitutional right" to do so. In other words, if you say something offensive to me on my property and I tell you to leave, can I be prosecuted?
No, but that has nothing to do with the constitution at all. A "constitutional right to do so" means that one can't be prosecuted for doing so; it doesn't mean one can't face private sanctions, such as termination of employment or kicking you off someone else's property.

In other words, there's no contradiction between, "I have the constitutional right to say something offensive on your property" and "You have the right to tell me to leave for saying something offensive on your property."
1.17.2009 11:28am
Rich H:
Interesting. One further question:

Having demanded that someone leave my property for saying something offensive, would this person have a valid case for suing me for infringing on his constitutional right to free speech?
1.17.2009 8:34pm
NotMyRealName:
The "shouting fire" analogy is widely misunderstood. There's a subtle reason why, at the time of Schenck, it might be OK to prohibit falsely shouting fire in a crowded theater, causing a panic. This reason has a lot to do with historical idiosyncracies that no longer apply. At the time, theaters were deathtraps; fires were extremely serious and had caused many widely publicized mass deaths. In that atmosphere of fear and danger, a theatergoer who hears a shout of "fire!" is likely to react almost instinctively, almost without pause for thought. When shouting a word has the power to cause listeners to react without thought, then it's not so clear that the spoken word is protected speech -- in any case, it's clearly in a different category than most speech. My experience is that most people who use the "falsely shouting fire" analogy are unaware of these subtleties and as a result the "falsely shouting fire" situation is not actually as analogous as people think.
1.17.2009 10:15pm
whit:

Having demanded that someone leave my property for saying something offensive, would this person have a valid case for suing me for infringing on his constitutional right to free speech?



no

no offense, but i can't believe anybody can be seriously asking this question.

scenario: you have a house party. various guests are whooping it up. one guest says "man, i'm glad there are no asians at this party. i hate asians!".

does he have a constitutional right to say this? of course. that means that you can't call police and make a criminal complaint about what the man said. because it's not a crime.

can you demand he leave your house? of course.


can he sue you?

of course not.

well, let me correct myself. this is america. anybody can sue anybody for anything. :)

but no, it's not a valid reason to sue, and no you did not violate his rights.

if the guy, otoh, was standing in a public park and saying "i hate asians. asians suck. they smell of rancid kimchi and cheap pupu platters" and a cop walked up and started hassling the guy, THAT would be a violation of his constitutional rights.

fwiw, it is not uncommon for citizens to call the cops and complain about somebody, even though that person is 100% in compliance with the law, and is exercising his rights (as above). it doesn't mean the cops could stop and detain the guy merely because a citizen complained he was wanking about asians.
1.17.2009 11:04pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.