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.
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.
For some reason Eugene appears to think that God is lousy.
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.
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.)
Perhaps an evil law student after reading Shcenk thinks he can avoid prosecution by first lighting a match then shouting "fire!"?
As a particularly tragic recent counterexample, one hundred people died in a stampede nightclub in Rhode Island in 2003.
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.
Of course in that case, there really was a fire.
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.
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.
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.
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.
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.
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.
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.
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.
I am a polytheist, for example.
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.
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:
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.
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!
I don't think so.
Its a rejection of the speaker.
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.
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.
See Original Meaning: Freedom of Speech and the Press
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?
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.
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.
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?
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."
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.
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