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262 sats \ 1 reply \ @Arceris 15 Aug \ on: You Can’t Yell “Chicken Jockey” in a Crowded Theater (Except When You Can) econ
There's one more issue with the "fire in a crowded theater" analogy that the author doesn't mention:
The analogy is incorrect on its own terms
The full quote, but Justice Oliver Wendell Holmes: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic." Schenk v. United States, 249 U.S. 47 (1919). (Incidentally, this is also the "clear and present danger" test).
There are several things on this:
  1. Falsely shouting "fire";
  2. in a crowded theater; and
  3. causing a panic.
If any one of those things is not present, then you can yell fire in a theater.
The reading which has taken to be a restriction on speech is more properly understood as causing a panic under false pretense. The speech is immaterial. If one yelled "banana" (or just "aaaaaa") in a crowded theater and that somehow caused a panic, that is also could potentially be an issue. Alternatively, if there was indeed a fire, then the truthful yelling about it (regardless of the ensuing panic) would not be an issue.
It's the causing of a panic for no good reason that is the issue, not the speech itself.
This is one reason why the Court moved on from Holmes' test and instituted the Brandenburg test, which captures more of this nuance:
[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.
  • Brandenburg v. Ohio, 365 U.S. 444 (1969).
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0 sats \ 0 replies \ @Rothbardian_fanatic OP 15 Aug
I had understood those conditions before reading this article. This article had a slightly different approach: contracts and private property that has nothing to do with state derived legal fiat from state courts. I appreciated this approach more than just the state, by it’s fiat, declaring limits to free speech because feelz.
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