Posted on 10/27/2022 2:15:16 PM PDT by nickcarraway
On Tuesday, Supreme Court Justice Samuel Alito repeated the common myth that "shouting 'fire' in a crowded theater" is unprotected speech.
Though it is a popular misconception, it's perfectly legal to yell "fire" in a crowded theatre. However, Supreme Court Justice Samuel Alito hasn't seemed to have gotten the message.
Despite sitting on the highest court in the land, directly deciding what is—and isn't—protected by the First Amendment, Alito delivered repeated on Tuesday a common constitutional myth. Whether the remark reveals a deep-seated misconception about First Amendment jurisprudence or was simply a momentary slip-up is unclear.
On Tuesday evening, Justice Alito, delivered remarks at The Heritage Foundation, as part of the think tank's Joseph Story Distinguished Lecture. During the lecture, Alito spoke on a wide swath of issues—ranging from his early legal career to substantive due process. He also expounded at length on the state of discourse and free speech on college campuses, particularly law schools.
"Based on what I have read and what has been told to me by students, it's pretty abysmal, and it's disgraceful, and it's really dangerous for our future as a united democratic country," Alito said. "We depend on freedom of speech. Freedom of speech is essential."
Alito emphasized the particular role that law schools have in fostering "rational debate" and holding firm to the principle of free speech, saying that some schools were "not carrying out their responsibility."
However, Alito's trouble began when he was asked where he would "draw the line between protected and unprotected speech." Alito emphasized the importance of protecting "any speech involving public issues, involving politics, government, history, economics, law, science, religion, philosophy, the arts," but he noted that the First Amendment doesn't protect all speech, including "extortion and threats," defamation, and "shouting 'fire' in a crowded theater."
However, Alito is simply wrong that "shouting 'fire' in a crowded theater" is unprotected speech. The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.
In his opinion, Justice Oliver Wendell Holmes wrote that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, "the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority." The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.
"Anyone who says 'you can't shout fire! in a crowded theatre' is showing that they don't know much about the principles of free speech, or free speech law—or history," Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. "This old canard, a favorite reference of censorship apologists, needs to be retired. It's repeatedly and inappropriately used to justify speech limitations."
While Alito's mistake is a common one, it is particularly frustrating because, as a Supreme Court Justice, he should know better. The popularity of this myth poses real threats to free speech. "You can't yell 'fire' in a crowded theatre," is often invoked to justify unconstitutional restrictions on speech and to overstate restrictions to the First Amendment. When this myth is adopted by a Supreme Court Justice—no less, the lone dissenter in two recent 8–1 First Amendment cases—it spells danger for our broader cultural understanding of free speech, as well as the values held by those in power.
Ruth Bader Ginsberg is probably smarter than Emma too, doesn’t mean she was a better judge.
So no exact case (yelling fire in a theater) has come before the court but a previous opinion has indicated how that court would interpret it, and a current sitting judge has indicated how he would interpret it, but Alito is wrong and this hack writer knows better.
A fine example. If you yelled gun and knew it was a lie, you would be arrested and charged for the injuries and damage from the resulting panic. That disorderly conduct charge would stick and the first amendment would not protect you.
That is a modern update on fire in a crowded theater.
Try yelling there is a bomb on the plane because you want to get off when stuck waiting for a gate.
Emma the college girl who was an infant on 9/11 has no clue.
And how many people are sitting in the DC Gulag today because they made the mistake of saying the election was stolen? It is literally in the government argument establishing their danger to society.
A total lie from a childish short-haired college skank who nobody wants at Thanksgiving this year.
Here is what it is ACTUALLY about.
“Justice Samuel Alito said Tuesday that the unauthorized disclosure of a draft landmark Supreme Court majority opinion on abortion put some justices at risk of assassination.
Speaking at a Heritage Foundation event, Alito said the release of his draft opinion made the justices presumed to be in the majority “targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us.”
The draft from Dobbs v. Jackson Women’s Health Organization was published by POLITICO on May 2.
“It was a grave betrayal of trust by somebody,” Alito, who authored both the draft and the final majority opinion, told the Heritage Foundation’s John G. Malcolm.
Has abortion become a decisive factor in the midterms?
The draft proved substantially similar to the final majority opinion that was issued in June. That ruling overturned the Supreme Court’s 1973 ruling in Roe v. Wade, which had established a right to abortion throughout the country.
“It certainly changed the atmosphere at the court,” Alito said of the unauthorized disclosure of the draft.
Alito noted that a California man was subsequently charged in an alleged plot to kill Justice Brett Kavanaugh, who was one of the justices in the majority.”
“Legal, yes.”
No, if it was done deliberately to cause a panic, and people get injured, you can easily be charged with disorderly conduct.
Another example, think you can call in a bomb threat and say it was free speech? You are in the hook for a lot more than money.
On the other hand if there is a serious fire, speaking truth even if it has dangerous consequences should be protected speech IMO. Should a person who sees a fire keep silent, thus delaying the warning that could save many lives? That would be insane, but would be a consequence of lawsuits punishing people for telling the truth in such situations.
Not only is the author & article wrong, the article is “Libel Per Se”...and ironically, that makes the article not protected by 1A.
I have often argued, that the listeners bare more responsibility than the yeller does. Speech is not an excuse for misbehaving and all speech must be protected... and not so niggardly.
I see what you did there.
The whole thing is an academic “gotcha”. This is what happens when liberal elitists gather to discuss conservative or constructionist constitutional views.
First you say it’s legal to yell it then you say there are consequences. That seems to be contradictory because if something were legal there would be no legal consequences.
But to the point, this article has a non lawyer Emma camp a philosophy major lecturing us on constitutional law. Gee, for those of us with law degrees this is pretty funny stuff. Schermer ought to vet his writers a little more carefully. Some moron saying a Supreme Court justice doesn’t know the law is pretty vile.
And by the way, Alito is perfectly correct.
Well I am no lawyer but I understand it to be legal, except in certain circumstances where you know it is reckless to do so. Or as Chick Hearn would say “no harm, no foul”.
So if you knew there actually was a fire and stayed silent?
This article is a pendant’s dream. The concept of not being able to shout fire in a crowded theater obviously includes some additional context. Taking it literally and removing all that context just to prove how smart you are is both tiresome and transparent.
I think Good Samaritan laws have always been struck down.
The late Yippie Abbie Hoffman wrote freedom of speech would be assured “If I can yell ‘theater’ in a crowded fire.”
But what if there IS A FIRE in the theater?
The Two Orphans or The Brooklyn Theater fire comes to mind.
The problem is that yelling fire, true or not, can cause people to Be injured attempting to escape. So in reality always doing this is by definition reckless.
All you have to see is the hundreds of people killed in foreign countries attempting to escape stadiums, night clubs, and the like at the first sign of a disaster, real or not.
Again, not a lawyer but I still see it as problematic. Can you whisper fire? Can you speak fire in a normal tone? If you say nothing but see a fire and run? All these could cause a stampede.
As an aside... it’s why I personally tend to avoid concerts, movie theaters, parades etc much to the dismay of the missus. People are rational. Crowds are not.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.