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What Line?

The Line where Free Speech causes Harm.

The Line where Free Speech Inflames and Incites.

The Line where Free Speech causes Death.


First Amendment to the United States Constitution is among our most cherish principles and ideals.  The "prohibition or abridgment" of speech are themselves prohibited by Congress, in the Constitution.


Yet the Supreme Court over the years has drawn a "few boundaries" where Free Speech causes more Harm, than Good -- where Free Speech should lead to real Liability.

Especially when such Speech is spoken "falsely".

Actually, [Justice Oliver Wendell] Holmes wrote that "falsely shouting fire in a crowded theater" cannot be protected. The key word "falsely," left out by Breyer, gave the phrase its legal significance.

If you truthfully shout "fire" in a crowded theater, then that is dangerous but truthful, so it's protected by the First Amendment.


So there IS a Line ...


So according to this well-established Legal Precedent, of the "Crowed Theater" --

When Speech is potential Harmful -- It must also be True.

in other words -- there MUST be an Establishment of Facts.


Someone Inciting Dangerous Actions -- MUST be uttering the "Truth", according to the Supreme Court.


Otherwise the Harm likely to be caused, outweighs the benefit of the individual to express "their ideas".  


We can not go around shouting "Fire!" -- falsely -- at public events, simply to "stir stuff up" or agitate the audience.  There are consequences to that type of speech.  

Incitement Speech has Consequences.

Hate Speech has Consequences.

False Speech has Consequences.


Even though "Public Figures" may have to endure "falsehoods", and even "defamation of their character" -- without much legal recourse, by other well-established Legal Precedents

-- even so they should NOT have to endure Harm, as a tangential result of false, hateful speech.

"The right to swing my fist ends where the other man's nose begins."

 --  Oliver Wendell Holmes


Perhaps, if the fourth estate, the watchdog of government, our Constitutional-established "Free Press" were more focused on Fact Checking, than "stirring stuff up"

-- perhaps THEN we wouldn't have so many people, political figures or otherwise, running around FREELY Shouting "Fire" in a Crowded America ... FALSELY ... and with questionable intent.


When the Speaker is shouting Fire, they had damn-well better mean it.

And IT had damn-well better, better be TRUE!

Originally posted to Digging up those Facts ... for over 8 years. on Sun Jan 09, 2011 at 10:21 AM PST.

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Comment Preferences

  •  Tip Jar (0+ / 0-)


    Where's the Note?    -- SEIU

    by jamess on Sun Jan 09, 2011 at 10:25:27 AM PST

  •  This is just one of a number recent events (3+ / 0-)
    Recommended by:
    Gooserock, jamess, NY brit expat

    which have persuaded me that it is time to revise the libertarian view of first amendment absolutism. The US is in an extreme position in comparison with other industrialized democracies.  

    •  Glenn Beck has plaining been inciting violence (2+ / 0-)
      Recommended by:
      kdub, NY brit expat

      and at least one unstable person took him up on the incitement:

      Did Glenn Beck's rhetoric inspire violence?
      By Brad Knickerbocker, csmonitor.com, Staff writer -- October 16, 2010

      Fox News commentator Glenn Beck, who’s honed being provocative – even outrageous at times – to a fine and lucrative art, is the focus of criticism for inciting violence.

      Specifically, his dozens of comments attacking the Tides Foundation are being linked to the attempt by a heavily-armed man to assassinate employees at the San Francisco-based foundation, which funds environmental, human rights, and other progressive projects. The attack in July was thwarted in a shoot-out with police in which two officers were wounded.

      Since then, alleged attacker Byron Williams has said in jailhouse interviews that he wanted to "start a revolution." He says Beck was not the direct cause of his turning violent. But he does say: "I would have never started watching Fox News if it wasn't for the fact that Beck was on there. And it was the things that he did, it was the things he exposed that blew my mind."

      At various times, Beck has referred to Tides as "bullies" and "thugs" whose mission is to "warp your children's brains and make sure they know how evil capitalism is." More recently, Beck (who describes himself as a "progressive hunter") has warned the foundation "I’m coming for you."


      Where's the Note?    -- SEIU

      by jamess on Sun Jan 09, 2011 at 10:33:23 AM PST

      [ Parent ]

    •  Something I've Been Commenting On Here for (2+ / 0-)
      Recommended by:
      Richard Lyon, jamess

      a couple of years at least.

      I think both the communication rights need complete replacement.

      But I also think this requires a revolution in concepts of governance possibly more dramatic than the rest of our system was over prior democratic systems. Literal sweeping free speech for human beings is the safest; applying it to corporations is overtly dangerous. Press freedom is literally a corporate freedom so I don't easily know what to do about it to make it serve the interests of the people.

      Because of the literal worship Americans have for the original wording, the entire topic is just about totally unexplored.

      We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

      by Gooserock on Sun Jan 09, 2011 at 10:33:26 AM PST

      [ Parent ]

      •  I think that we can look at the experiences (2+ / 0-)
        Recommended by:
        jamess, NY brit expat

        of countries such as the UK and Canada. They have have instituted limitations and neither one has yet turned into a fascist dictatorship.

        •  you can also look at Germany for that matter (2+ / 0-)
          Recommended by:
          Richard Lyon, jamess

          Consider reading this The Treatment of Hate Speech in German Constitutional Law (Part I)
          in combination with German basic law on Freedom of expression:

          Article 5 [Freedom of expression]
          (1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.

          (2) These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honor.

          (3) Art and scholarship, research, and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the constitution.

          You can find ways to limit hate speech and guarantee freedom of expression. It's not an impossibility.

          Empowering Young Inmates to Write New Chapters in Their Lives. Free Minds.

          by mimi on Sun Jan 09, 2011 at 12:01:24 PM PST

          [ Parent ]

      •  the new freedom of corporate speech (2+ / 0-)
        Recommended by:
        gulfgal98, NY brit expat

        is truly dangerous, in its potential for causing harm,
        through Falsehood, especially now that "Citizens United"

        effectively hides the footprints of the False Inciters,
        be they corporate speakers, or just Millionaires:

        American Future Fund's Cookie Cutter Ad -- Insert Candidate Name Here
        by jamess -- Oct 16, 2010


        Where's the Note?    -- SEIU

        by jamess on Sun Jan 09, 2011 at 10:41:20 AM PST

        [ Parent ]

  •  the test is (2+ / 0-)
    Recommended by:
    Adam B, jamess

    Brandenburg v Ohio.: It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action. In particular, it overruled Ohio's criminal syndicalism statute, because that statute broadly prohibited the mere advocacy of violence

  •  "A perfect storm" (3+ / 0-)
    Recommended by:
    jamess, gulfgal98, NY brit expat

    Hate speech is dangerous, and the danger accumulates in layers. As with anything absolute, the probability of a tipping point grows with each layer.

    •  slowly what was once (1+ / 0-)
      Recommended by:
      NY brit expat

      disturbing, and frowned upon,

      becomes "normal" and accepted,

      as each Layer piles on, unaddressed.


      Joe Wilson -- "You Lie!"

      serves as a case in point.

      It established a key "incitement" layer --

      perhaps a foundational one, upon which the others are built.


      Where's the Note?    -- SEIU

      by jamess on Sun Jan 09, 2011 at 10:52:31 AM PST

      [ Parent ]

      •  And ... (0+ / 0-)

        how did the Fourth Estate "analyze that Free speech event" ?

        In their typical  "Pro vs Con"  non-committal fashion.

        They just kept "stirring that pot."  


        Instead of questioning its veracity.

        as Watchdogs are expected to do.


        Funny, do you Remember ... WHAT Joe Wilson
        accused the President of Lying About?

        Neither do I.  

        A clear indicator of the triumph of "Spectacle over Substance" in our current Media format.


        Where's the Note?    -- SEIU

        by jamess on Sun Jan 09, 2011 at 11:43:45 AM PST

        [ Parent ]

  •  Holmes was referring to passing out leaflets... (1+ / 0-)
    Recommended by:
    NY brit expat

    ...in opposition to a military draft.

    Rhetoric that incites violence seems to me to be just the opposite of the type of speech that the phrase was originally coined for.

    Shouting fire in a crowded theater

    From Wikipedia, the free encyclopedia

    "Shouting fire in a crowded theater" is a popular metaphor and frequent misquoting of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919. The misquote fails to mention falsely shouting fire to highlight that speech which is merely dangerous and false which can be distinguished from truthful but also dangerous. The quote is used as an example of speech which is claimed to serve no conceivable useful purpose and is extremely and imminently dangerous, such as distributing fliers in opposition to a military draft, so that resort to the courts or administrative procedures is not practical and expresses the permissible limitations on free speech consistent with the terms of the First Amendment of the United States Constitution.

    snip-------------------------

    Shouting fire in a crowded theater

    illegal, n. A term used by descendants of European immigrants to refer to descendants of Indigenous Americans

    by ricardomath on Sun Jan 09, 2011 at 10:55:34 AM PST

    •  from that link (1+ / 0-)
      Recommended by:
      NY brit expat

      Holmes wrote:

      The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] 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.

      granted the "clear and present danger" they ruled against was "draft resistors":

      Holmes, writing for a unanimous Court, ruled that it was illegal to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war.

      So govt's "speech interests" trump the people's "assembly interests"?

      In this case apparently so.


      Where's the Note?    -- SEIU

      by jamess on Sun Jan 09, 2011 at 11:05:17 AM PST

      [ Parent ]

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