Wednesday, June 7, 2017

First Amendment quiz: Answer

The East Burger Fire Department gave its Good Citizen Award to Randloph Davis-Pelonzo for shouting "fire" in a crowded movie theater--as LG, JW, SR, BW, MC, and others said--because there was a fire in a theater, and his shouting averted a panic--and thus the moviegoers' rights not to be injured by a mindless stampede were not violated.

Which brings me to the stupid, usually biased talking-heads on TV and elsewhere who persist in saying that Randy can't shout fire in a theater . . . .

Which brings me to the 1919 case of Schenck v. United States, which involved neither shouting, fire, theater, or panic.

Schenck was prosecuted under the Espionage Act for speaking and circularizing against the World War I ("The war to end all wars") by invoking against the draft the United States Constitution, especially the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Enter Associate Justice O. W. Holmes, who wrote in dicta (something said in a judicial opinion having neither factual, legal, or decisional bearing on the case's opinion(s) that "The most stringent protection of free speech would not protect a man [or woman] in falsely shouting fire in a theatre and causing a panic."

This is the crucial word omitted by those, especially on the left, who today seek to suppress speech they oppose by invoking the Holmes dicta. Unfortunately, while the censors have many supporters, Holmes can't legitimately be invoked as one of them.

Next time someone utters the cliche about "shouting fire in a theater and causing a panic," remind them they've left out a crucial word: falsely. And remind them of the heroic Randloph Davis-Pelonzo who shouted "fire" in a presumably crowded movie theater, prevented a panic, and saved the day.

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