Cathy, thx for the interesting history but, honestly, you overstate the case. David has a valid point. The fairest true statement about falsely shouting fire in a theater is that it hasn’t been adjudicated, not that it would (or should) be protected. If it were adjudicated, it would likely fail as protected speech. As proof, look no further than the very case you cite, Brandenburg v. Ohio. Elaborating on the majority decision, Justice Douglas addressed this specific carve out in his concurrence (with Justice Black further concurring):
``The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.
The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.
This is, however, a classic case where speech is brigaded with action. … They are indeed inseparable and a prosecution can be launched for the overt acts actually caused.'' [456-457 -- emphasis added]
So, judging by the judges who judged it, this would not be protected speech. The reason is that it is both false and panic-inducing –- imminent lawless action. Justices Douglas and Black are among the staunchest free speech absolutists so their exception in this landmark case makes the decision a reasonably sure bet.
Speaking personally, not legally, I think the right solution is that (1) government has no business regulating specific speech at this level but (2) the families of anyone injured or killed by a false shout of fire in a theater has a cause of action proportional to the damage caused. No damage? Then, no harm, no foul. Someone died? Then the speaker needs to answer for that. Citizens injured rather than government censors ought to have the say.
Techdirt has not posted any stories submitted by InfoEcon.
Re: Re: Re: Why should triggering a panic be legal?
Cathy, thx for the interesting history but, honestly, you overstate the case. David has a valid point. The fairest true statement about falsely shouting fire in a theater is that it hasn’t been adjudicated, not that it would (or should) be protected. If it were adjudicated, it would likely fail as protected speech. As proof, look no further than the very case you cite, Brandenburg v. Ohio. Elaborating on the majority decision, Justice Douglas addressed this specific carve out in his concurrence (with Justice Black further concurring):
So, judging by the judges who judged it, this would not be protected speech. The reason is that it is both false and panic-inducing –- imminent lawless action. Justices Douglas and Black are among the staunchest free speech absolutists so their exception in this landmark case makes the decision a reasonably sure bet.
Speaking personally, not legally, I think the right solution is that (1) government has no business regulating specific speech at this level but (2) the families of anyone injured or killed by a false shout of fire in a theater has a cause of action proportional to the damage caused. No damage? Then, no harm, no foul. Someone died? Then the speaker needs to answer for that. Citizens injured rather than government censors ought to have the say.
Techdirt has not posted any stories submitted by InfoEcon.
Submit a story now.