“...Free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
As Justice Oliver Holmes summed up in U.S. vs. Schenk, there are limitations on free speech. In class we discussed the difference between civil liberties and civil rights, free speech being one of the former. While it sets limits to what is considered to be free speech, where exactly does this quote come from?
U.S. vs. Schenk occurred during 1919, when WWI was in swing. It had nothing to do with a theater or fire for the matter. Rather, it involved the Espionage Act of 1917 that was in place during the time. The act outlawed the undermining of military efforts or enlisting. Two socialists, including the secretary of the Socialist Party Charles Schenck, were charged with breaching the act by distributing pamphlets that encouraged people to go against the draft. The men responded with an appeal on the grounds of the First Amendment. The court overruled the appeal, stating that it was within their authority due to the fact that there was a war. Holmes concluded that if the words constituted a threat to the safety of others, it was not protected by the Bill of Rights. It was then that he brought up the quote in dictum. Schenk was sentenced to a decade in prison.
Then came Brandenburg vs. Ohio. The year was 1969, and Clarence Brandenburg stood before the Warren Court (probably best known for its judicial activism). As a leader of the KKK, he challenged Ohio law outlawing speech that encouraged violence and illegal behavior. Unlike the previous court case, the court found that the speech was not likely and did not directly incite violence amongst people. The Warren Court overturned the law and ruled in favor of Brandenburg. Thus, the ruling of Schenk was by all means overturned, as protesting the draft was not a call for violence. In fact, the Schneck and his partner had been encouraging pacifist ideas.
All of this points to the conclusion that this quote, though well known, it is not the best one to look to in regards to the limits of free speech. As it is with most things, what was relevant one hundred years ago might no longer be true today.
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i like your ideas about this topic. I think that you can say anything, but keep in mind of the consequences. You can yell fire at the movies, but be prepared for the consequences that may come.
ReplyDeleteI think this is a really good take. The fire case came up in a sillier manner in 2013 when a man falsely yelled bingo in a bingo hall. He was later cited for disorderly conduct and is now banned from saying the word bingo. In this case I guess they are limiting his free speech.
ReplyDeletehttps://m.washingtontimes.com/news/2013/mar/21/judge-bans-prankster-saying-word-bingo/
This is an interesting take, I've never really thought about it. I think their should be limitations (like if you're directly causing harm to someone/people), then you have to keep in mind the consequences. It's more of morals, you just don't yell fire at the movies, and there should be at least minor consequences such as getting kicked out of the movies because that causes people distress. Technically, you could go out and say anything you want, but as Mark said, I think you need to keep in mind the consequences that come with doing things.
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