The fact that that example became well-known due to the awful decision in Schenck v. United States does not mean that it's not a good example of speech that ought not be protected. Speech that is false and intentionally causes a panic should not be protected.
What about it? Not all speech is protected and there is a case to be made of the harm such speech poses. This is why we can't yell "fire!" in a crowded theater. Schenck v. United States, 249 U.S. 47 (1919)
"Yelling fire in a crowded theater" is a great example because it comes from a horrible Supreme Court ruling defending the arrest of someone handing out anti-war pamphlets.
I can't think of a better example of something that should be protected speech, or a better example of how "reasonable" limits will get abused.
Fortunately, that ruling has been mostly overturned by now.
Shouting fire in a movie theater is not a good example of unprotected speech, and as such it's not a good place to start reasoning from in deciding of other speech is unprotected. Otherwise, you start banning core political speech like advocacy against the draft, just like the since-overturned case that bad example comes from.
That's talking about hate speech, which is absolutely covered by the first amendment.
Sufficiently dangerous speech is not protected (Schenck v. United States, Dennis v. United States). Whether or not this speech was sufficiently dangerous is a matter of debate, but the comment you're replying to is correct.
I agree with you about Schenck, but I'm not sure what this has to do with the broader point at hand. Whatever you might think about Schenck, it is indisputably correct under American law that there are significant categories of speech that can be either proscribed or compelled. Schenck is just one of very many cases that demonstrate this.
"Fire in a crowded theater" is probably the wrong example. (In part because it was used to justify restrictions on political speech that would not fly today.)
> Petitioner's remark during political debate at small public gathering that, if inducted into Army (which he vowed would never occur) and made to carry a rifle "the first man I want to get in my sights is L.B.J.," held to be crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President within the coverage of 18 U.S.C. § 871(a).
Freedom of speech in the U.S. is extremely broad. False and damaging speech is in theory not protected (so defamation laws are valid), but the standard is very high even then. "Disingenuous" speech is protected (OP is calling it "disingenuous" because he can't prove it's clearly false.)
That there are practical limits is never in dispute. The question is always whether this instance is protected or falls under an exception, and should it be.
The analogy “fire in a crowded theater” was most famously used by Justice Holmes in 1919’s Schenck v. United States. Holmes used it to argue (and the court ruled that) protesting the military draft was a clear and present danger to the public tantamount to espionage.
Most people today, I think, would disagree. But the metaphor remains common, often used uncritically, without considering what speech it has been used to suppress in the past.
> And in fact the line from Justice Holmes in Schenck v. United States 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 often constitutionally unprotected — consider, for instance, libel, fraud, perjury, and false light invasion of privacy. That would presumably apply to knowing falsehoods that cause a panic.
Everyone in favor of banning certain speech based on its content should consider this article. When you open the door to banning speech based on content, the government will happily define something speech it does not like as "treason" or "hate speech" or whatever the favored term is.
People "shouting fire in theater" is not protected speech as a way to say that free speech protections are limited with respect to certain content. This phrase comes from Schenck vs United States https://en.m.wikipedia.org/wiki/Schenck_v._United_States that ruled that it was Constitutional to arrest someone for distributing anti-draft fliers. So be very careful what you wish for with regard to limits on free speech, you just might get it.
Fire in a crowded theater is a famous exception. It’s also from a 1919 case that was subsequently overruled as the Supreme Court broaded free speech protections after WW2. https://en.m.wikipedia.org/wiki/Schenck_v._United_States
The speech itself is protected, but speech can be deemed a tort in a civil proceeding, regardless. Freedom of speech protects opinions and best-effort reporting of facts, not necessarily all speech. Granted, we have to be careful not to exclude too much from protected speech, or we will never have the right again. The canonical example is causing panic with malice of intent, such as yelling fire!, fire!, fire! in a crowded hall, knowing well that there is no fire and with the intent is to cause a trampling hazard.
Fraud usually has to do with commercial statute (in the U.S., the UCC), where misrepresenting goods is grounds for a civil dispute.
Free speech protection in American law is with its limits. Speech itself isn't protected if it is directed to incite or produce imminent lawless action. See Brandenburg v. Ohio.
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