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Hi, it's Ken, your friendly area guy who gets offputtingly agitated when you don't display the same obsessive grasp of legal history and terminology that he has amassed at the cost of his very soul!
Let's talk about the "shout fire in a theater" thing.
/1
https://twitter.com/ChrisLu44/status/1356663374835306498?s=20
Let's talk about the "shout fire in a theater" thing.
/1
https://twitter.com/ChrisLu44/status/1356663374835306498?s=20
/2 First point: "you can't shout fire in a theater" is an empty cliché meaning "some speech is not protected by the First Amendment." But that's (a) undisputed and (b) a useless observation without analysis of whether an exception applies to THIS speech. https://www.theatlantic.com/ideas/archive/2019/08/free-speech-cliches-media-should-stop-using/596506/
/3 Free speech exceptions are known, established, and heavily litigated leading to extensive precedent. Saying "not all speech is protected" conveys zero useful information, and no persuasive argument, about whether THIS speech is protected or not.
/4 It is, as I've said before, like going to the doctor to ask "hey this snake just bit me, is it venomous?" and the doctor responds, "well, not all snakes are venomous, you know." #NOTALLSNAKES IS NOT HELPING AT THIS PARTICULAR MOMENT DOCTOR
/5 Second point: "shout fire in a theater" is a rhetorical device used in 1919 to justify jailing people for writing anti-draft pamphlets in World War I. The First Amendment standard (to use the term generously) applied in that case has been dead for more than a half-century.
/6 The same judge went on to smirk "three generations of imbeciles are enough" to justify forcible government sterilization of persons deemed undesirable by the state, so you know, he had a way with words. https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/
/7 So when you trot out "you can't shout fire in a theater" in response to a First Amendment question, you're using the catchphrase a eugenicist used to support jailing people for criticizing the draft in a case that hasn't been good law for a half century.
You utter turnip.
You utter turnip.
/8 In terms of a grasp of jurisprudential and American history it is roughly the equivalent of thinking "now just wait a cotton-pickin' minute" is a palatable and convincing phrase.
/9 Also, just so you can evaluate WHY Holmes developed the phrase, and whether it was meant to be serious or emotionally manipulative, you'd need to know how absolutely terrified people were of theater fires in 1919 because they killed so many people. https://legaltalknetwork.com/podcasts/make-no-law/2018/06/fire-in-a-crowded-theater/
/10 In short: STOP IT.
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