Any theatre offering access to the public should be able to evacuate all patrons safely in the event of a real fire, thus someone falsely yelling “fire!” simply inconveniences people and should be banned by the owner. There is no need to get the police involved and have this ridiculous example as legitimisation on limits on free speech in a public arena.
There are limits that should be upheld, but not necessarily by police (e.g. someone being slandered could sue rather than have the slanderer arrested.) Incitement to violence may be banned as a pragmatic measure, but that would be my Schelling point (and even then I’m not 100% sure...)
So your idea is to have them stay in there indefinitely as someone might get hurt on the way out?
If you can’t evacuate a theatre without a reasonable expectation that no-one will be harmed you shouldn’t be running a theatre and anyone who is harmed should sue you (or fire marshals, local council, regulators or whoever should shut you down).
Even if a reasonable expectation that no-one will be harmed during evacuation exists, it doesn’t follow that forcing an unnecessary evacuation has no expected costs other than inconvenience (as you originally claimed).
It might be, for example, that most experts in the field accept that theatre-evacuation technology simply isn’t expected to reduce the expected cost of an evacuation below .01 deaths, and thus expecting less than that is unreasonable, and this fact is published and known to all theatre-goers, who decide that .01 * likelihood-of-evacuation is small enough to not preclude going to the theatre.
It follows that there’s no grounds to sue the theatre, the fire marshals, etc.
It doesn’t follow that forcing an unnecessary evacuation has no expected cost.
So your idea is to have them stay in there indefinitely as someone might get hurt on the way out?
That’s not at all what I said.
If you can’t evacuate a theatre without a reasonable expectation that no-one will be harmed you shouldn’t be running a theatre and anyone who is harmed should sue you (or fire marshals, local council, regulators or whoever should shut you down).
Basically what TheOtherDave (hmm, convenient, as I happen to be a Dave as well...) said. A bunch of frightened people moving about all at once are going to present more risk than a bunch of calm people trickling in and out; the question is what we can do to lower that risk. Any security measure is about tradeoffs, and when it costs X to lower the risk by Y of harm Z, and X > Y Z chance of an incident, then implementing the measure is bad policy. This calculus is embodied in the decisions made by the fire marshals and the local councils and regulators and whatnot as they put together the local fire code, run inspections, etc, whose goal is not to reduce the risk to zero (or even “absolutely as low as we can go at any cost”).
when it costs X to lower the risk by Y of harm Z, and X > Y Z chance of an incident, then implementing the measure is bad policy.
Is exactly the point, but you have not defined X. Given that X leads to a slippery slope decrease in all free speech rights (e.g. Gitmo torture reporting, Bradley Manning etc. etc.) then how do you quantify X?
Sometimes the direct harm of X may be less than the others, but the principle is much more important.
This is why we presume people innocent. This is why convicting no-one is preferable to convicting the wrong person. This is why, in short, we have rights!
Which has nothing to say on the possible, actual or long-term harm of removing the rights of free speech in a certain situation—it simply defines (quite well) the other side of the equation.
The criminalisation of free speech is a severe measure and must be as limited as is practicable in scope. All western societies are based on the free exchange and discussions of ideas. The benefit of free speech is so great (as mentioned in the Hustler case) that its restriction must prevent some great harm. As a recent example showed, the right of a Florida pastor to burn a book outweighed the strong probability of his actions leading to a severe cost of injury (death) to US, and other, civilians and military abroad.
Now, maybe you think his rights should have been quashed (I strongly don’t), in which case you’re consistent, or you must think that the right to yell “fire!” when there isn’t one should be upheld as the probability of harm, and the likely amount of harm, are low—or you’re applying different rules according to some outside notion not yet mentioned.
I happen to think there is another notion here—intent. The intent of the “fire!” yeller is somewhat irrelevant since the actual danger is, or should be, minimal. The pastor simply wanted to upset Muslims, which is certainly protected under free speech, their reaction is a separate problem. Whereas a mafia don publicly offering a bounty on someone’s head is a different ballgame.
I happen to think there is another notion here—intent. The intent of the “fire!” yeller is somewhat irrelevant since the actual danger is, or should be, minimal.
The is a core part of the disagreement. The cost of preventing risk of injury from a false yell of fire is prohibitive for the owner of the theater. So it is reasonable to shift some of the cost of prevention to the person who knows there is no fire but wants to yell fire, in part because the cost of not falsely yelling fire is so low. Further, it is reasonable to expect the potential false-yeller to know that the yell will be believed, cause panic and therefore cause injury.
The Koran burner receives more protection because there wasn’t a knowing falsehood in that case. The relevant mental state is not intent to harm, but knowledge of the statement’s falsity.
Okay, but what it comes down to is what is the expected reaction of reasonable people in a given situation. If people can’t safely exit a theatre then we need to re-think theatres. And safety tests.
If I’m in a theatre and a patron shouts that the popcorn has been poisoned (an intentional lie) then I can’t conceive of any action (assuming [s]he hasn’t been near the popcorn) other than ejection and ban. don’t see why their liberty has to be sacrificed.
Similarly, if the risk of injury is as low as I think it (should be) is then the intent to cause panic is again not an issue for the criminal justice system. Sue them (if you can/must) and ban them for life.
The apparent agreement that a false statement that has an incredibly small chance of causing actual harm, where the harm is unlikely unless the venue is sub-par, should go beyond the basic remedies for the discomfort and damages caused by the injured parties and spill over into denying someone their liberty is worrisome.
Well, we don’t agree that a venue where people would get injured in a panic is sub-par. We’ve learned a lot since the 1910s, but panics are like hundred year floods in that it does not make economic sense to constantly prepare for every possible event of that level of unlikeliness.
But I agree that speech that is intended to cause harm but is unlikely to be able to cause harm (i.e. an obviously false claim that the popcorn is poisoned) is not a good candidate for criminal penalty. But it’s generally quite hard to prove that one intended harm if one’s acts seem unlikely to be able to cause harm.
I find it’s easier to think clearly about this stuff if, when calculating the costs on both sides, I try to forget that I have a preferred answer.
The cost of someone shouting “fire!” in a theatre is what it is; I’m inclined to agree with you that it’s not very high, though I think you’re trying to make it sound lower than it is. The cost of preventing someone from shouting “fire!” in a theatre is what it is as well. Looking at just the first-order costs I conclude that the costs of preventing it are in general lower than the costs of it happening.
The second-order costs are less clear to me and can easily swamp the first-order costs, though. Mostly it becomes a question of whether there’s a reliable Schelling point near shouting “fire!” that I expect to prevent that from becoming grounds for supporting higher-cost speech suppression. I’m less certain about that; and I expect it depends a lot on the specific community, so I can easily see where the “shouting fire” legal principle leads to a lot of expensive bad law, and that on balance we’d therefore do better discarding the principle.
Or perhaps not. If I were actually interested in activism on this issue, I would start by refining my estimates.
As for intent, I’d say it’s at least theoretically relevant. For example, I consider the cost of having prevented all-and-only people who wish to shout “fire!” in a theatre for malicious reasons from doing so to be significantly lower than the costs of having prevented everyone from doing so regardless of their intent. That said, the costs of implementing such a policy given current technology are onerous, so I probably oppose (given current technology) having such a law, although various cheap approximations of it might be OK.
When the phrase was coined, they were almost certainly referring to the then-recent Italian Hall Disaster, in which 73 people were killed as a direct result of someone falsely shouting “fire”.
If you think that can’t happen now, substitute in your imagination some other utterance that kills 73 people in short order. Like maybe, going to a police hostage standoff and mimicking the sound of a gunshot.
As I stated elsewhere, the point of the quote is that there are limits somewhere on freedom of speech. Where to draw the line is hard, and the current First Amendment doctrine is different and more speech tolerant than Schenk.
Noting that on the one hand I don’t think our actual policy recommendations would be far apart (as pertaining to the issues at hand, at least) , and on the other that I have may objections to particulars your post above, I am going to nonetheless bow out as we are straying much too deep into mind-killer territory for my liking. I notice that you are new here, and point you toward Policy Debates Should Not Appear One-Sided and Politics Is The Mind-Killer, if you have not already seen them. Feel free to contact me privately if you would like to continue any political part of this discussion in another forum.
Any theatre offering access to the public should be able to evacuate all patrons safely in the event of a real fire, thus someone falsely yelling “fire!” simply inconveniences people and should be banned by the owner
A theater than can protect its patrons against a real fire doesn’t necessarily equal a theater that can protect its patrons against a false fire.
Nor do I find it more reasonable to ban businesses that are incapable of protecting all patrons against the repercussions of all types of lying. I find it far more reasonable, and much of a “Schelling point” to ban spreading knowingly false information.
e.g. someone being slandered could sue rather than have the slanderer arrested
That’s effectively a matter of degree—you’re just saying that the punishment should be a fine instead of a prison sentence. It’s not really a difference in kind.
A theater than can protect its patrons against a real fire doesn’t necessarily equal a theater that can protect its patrons against a false fire.
That is a patently false statement.
I find it far more reasonable, and much of a “Schelling point” to ban spreading knowingly false information.
And thus the slippery slope becomes a teflon cliff.
That’s effectively a matter of degree—you’re just saying that the punishment should be a fine instead of a prison sentence. It’s not really a difference in kind.
One is criminal and the other is civil? One is a dispute between two (equal under the law) individuals in front of a (supposedly) impartial judge and the other is the state versus an individual? Quite a lot of difference really.
A theater than can protect its patrons against a real fire doesn’t necessarily equal a theater that can protect its patrons against a false fire.
That is a patently false statement.
How do you know this? In the case of a true fire, fire extinguishers may activate, fire exits might automatically open, or perhaps the theater’s army of flying robots would come and carry everyone to safety. Or perhaps the theater is designed from such materials that it can’t catch fire.
And thus the slippery slope becomes a teflon cliff.
Excuse me? The concept of “knowing lie” isn’t a good enough Schelling Point for you?
I’m in favour of banning the act of falsely shouting “Fire” in a theater, for the exact same reason that I’m in favour of banning the act of giving poison to other people while calling it “orange juice”
I don’t think you’d have any opposition to treating the latter an act of murder, why are you against treating the former likewise an act of murder?
One is criminal and the other is civil?
This is a legalism, a difference in labelling, nothing else.
One is a dispute between two (equal under the law) individuals in front of a (supposedly) impartial judge and the other is the state versus an individual?
Again mere legalism. In practical terms, it’s the same, at least from the point of view of the accused—you get accused for something, someone is accusing you, if you’re found guilty you get punished. Simple as that.
Excuse me? The concept of “knowing lie” isn’t a good enough Schelling Point for you?
I’m in favour of banning the act of falsely shouting “Fire” in a theater, for the exact same reason that I’m in favour of banning the act of giving poison to other people while calling it “orange juice”
I don’t think you’d have any opposition to treating the latter an act of murder, why are you against treating the former likewise an act of murder?
I believe there actually is a salient distinction between the two. Namely, whereas the harm in the poisoning is the act of placing the poison in the drink and giving it to another person, the act in shouting “Fire!” is in the believing that there is no fire and the harm resulting from the shout. While the distinction would not amount to much for an all-knowing god, in reality it would probably prove difficult to establish what the person shouting expected the result to be, and to determine whether he had believed there was a fire or not. Punishing alarmist statements is indeed a potential slippery slope—if someone shouts “Earthquake!” in the middle of a crowded street and pedestrians panic and someone ends up in the traffic, shall we prosecute this shouter too? Or what if someone proclaims that the nation is under imminent threat of nuclear attack and this results in massive economic disruption as people try to hoard survival-type goods?
The problem here is that it is difficult for a court to assess whether the person actually believed what they said, and whether they anticipated (perhaps a priori rationally) that there would be no negative consequences of their proclamation.
It may also interest you to know that the original “shouting fire in a crowded theater” claim was part of a judicial ruling written by Oliver Wendell Holmes, Jr. in which the Supreme court unanimously ruled that it was a violation of the Espionage Act of 1917, to distribute flyers opposing the draft during World War I, which I think is a suitable example of its slippery slope potential. My general impression is that while there have been real instances of deaths caused by such shouts, most of these occurred before recent times, although I am not too confident in this.
The problem here is that it is difficult for a court to assess whether the person actually believed what they said, and whether they anticipated (perhaps a priori rationally) that there would be no negative consequences of their proclamation.
Courts do this all the time. Further, there’s a well developed set of doctrines about when a person is held responsible for consequences that the person did not actually anticipate.
More generally, the quote about falsely shouting fire is not intended to support a particular test for the limits of freedom of speech. Rather, the quote makes the point that speech is not unlimited.I can agree that Schneck’s conviction should have been overturned without believing that no pure speech can have legal consequences.
As an aside, the current test in the United States is imminent lawless action, a much more pro-speech standard. Nonetheless, a knowing false statement likely to lead to multiple injuries is almost certainly punishable by the criminal law.
Thanks, that helps update my knowledge of the current standards. I certainly agree that what you say is reasonable, however I do not think that a potential for a slippery slope effect can be eliminated through carefully formulated test or doctrines (merely substantially reduced). For example, it is conceivable that in emergencies the fact that we now accept some restrictions on free speech will make it much easier to accept further restrictions and thus make unreasonable restriction more likely.
Whether that is a reasonable compromise depends on the actual danger of “pure speech” causing negative consequences, on alternative ways of mitigating them, and on the actual degree of the slipperiness of the slope. Personally, based on my current knowledge, I would prefer to pursue various alternatives before resorting to criminal legal action, however that’s dependent on actual facts and has little to do with the main topic being discussed.
One is criminal and the other is civil? One is a dispute between two (equal under the law) individuals in front of a (supposedly) impartial judge and the other is the state versus an individual? Quite a lot of difference really.
This distinction breaks down very quickly. Consider Hustler v. Falwell, which limited the scope of civil remedies because enforcement of those remedies violated freedom of speech.
Or, more recently, Phelps v. Snyder, where the Court overturned a jury verdict for intentional infliction of emotional distress based on Fred Phelps’s First Amendment protected funeral protest.
No. If you really believe the public/private distinction is solid, then the First Amendment has nothing to do with private (i.e. civil) disputes. So Hustler should have come out the other way.
In general, American law has really struggled with the public/private distinction. I would say this is because the distinction is not rigorously meaningful—although I doubt most judges would frame it quite that way.
Regardless of the framing, American law recognizes that the situation of “two equal individuals before an impartial judge” includes the fact that the judge is an arm of government, exercising government power. What that means in practice is less clear.
Compare Shelley v. Kraemer (“That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment is a proposition which has long been established by decisions of this Court.”) with Schiavo v. Schiavo (holding that a state judge ordering the removal of a feeding tube is not state action).
Any theatre offering access to the public should be able to evacuate all patrons safely in the event of a real fire, thus someone falsely yelling “fire!” simply inconveniences people and should be banned by the owner. There is no need to get the police involved and have this ridiculous example as legitimisation on limits on free speech in a public arena.
There are limits that should be upheld, but not necessarily by police (e.g. someone being slandered could sue rather than have the slanderer arrested.) Incitement to violence may be banned as a pragmatic measure, but that would be my Schelling point (and even then I’m not 100% sure...)
Being able to evacuate all patrons with sufficient safety is not necessarily the same thing as being able to evacuate all patrons with perfect safety.
So your idea is to have them stay in there indefinitely as someone might get hurt on the way out?
If you can’t evacuate a theatre without a reasonable expectation that no-one will be harmed you shouldn’t be running a theatre and anyone who is harmed should sue you (or fire marshals, local council, regulators or whoever should shut you down).
Even if a reasonable expectation that no-one will be harmed during evacuation exists, it doesn’t follow that forcing an unnecessary evacuation has no expected costs other than inconvenience (as you originally claimed).
It might be, for example, that most experts in the field accept that theatre-evacuation technology simply isn’t expected to reduce the expected cost of an evacuation below .01 deaths, and thus expecting less than that is unreasonable, and this fact is published and known to all theatre-goers, who decide that .01 * likelihood-of-evacuation is small enough to not preclude going to the theatre.
It follows that there’s no grounds to sue the theatre, the fire marshals, etc.
It doesn’t follow that forcing an unnecessary evacuation has no expected cost.
That’s not at all what I said.
Basically what TheOtherDave (hmm, convenient, as I happen to be a Dave as well...) said. A bunch of frightened people moving about all at once are going to present more risk than a bunch of calm people trickling in and out; the question is what we can do to lower that risk. Any security measure is about tradeoffs, and when it costs X to lower the risk by Y of harm Z, and X > Y Z chance of an incident, then implementing the measure is bad policy. This calculus is embodied in the decisions made by the fire marshals and the local councils and regulators and whatnot as they put together the local fire code, run inspections, etc, whose goal is not to reduce the risk to zero (or even “absolutely as low as we can go at any cost”).
So close notTheOtherDave...
Is exactly the point, but you have not defined X. Given that X leads to a slippery slope decrease in all free speech rights (e.g. Gitmo torture reporting, Bradley Manning etc. etc.) then how do you quantify X?
Sometimes the direct harm of X may be less than the others, but the principle is much more important.
This is why we presume people innocent. This is why convicting no-one is preferable to convicting the wrong person. This is why, in short, we have rights!
He did define X. It is the cost of preventing the harm. See generally Burden vs. Cost of Injury x Probability of occurrence
Which has nothing to say on the possible, actual or long-term harm of removing the rights of free speech in a certain situation—it simply defines (quite well) the other side of the equation.
The criminalisation of free speech is a severe measure and must be as limited as is practicable in scope. All western societies are based on the free exchange and discussions of ideas. The benefit of free speech is so great (as mentioned in the Hustler case) that its restriction must prevent some great harm. As a recent example showed, the right of a Florida pastor to burn a book outweighed the strong probability of his actions leading to a severe cost of injury (death) to US, and other, civilians and military abroad.
Now, maybe you think his rights should have been quashed (I strongly don’t), in which case you’re consistent, or you must think that the right to yell “fire!” when there isn’t one should be upheld as the probability of harm, and the likely amount of harm, are low—or you’re applying different rules according to some outside notion not yet mentioned.
I happen to think there is another notion here—intent. The intent of the “fire!” yeller is somewhat irrelevant since the actual danger is, or should be, minimal. The pastor simply wanted to upset Muslims, which is certainly protected under free speech, their reaction is a separate problem. Whereas a mafia don publicly offering a bounty on someone’s head is a different ballgame.
The is a core part of the disagreement. The cost of preventing risk of injury from a false yell of fire is prohibitive for the owner of the theater. So it is reasonable to shift some of the cost of prevention to the person who knows there is no fire but wants to yell fire, in part because the cost of not falsely yelling fire is so low. Further, it is reasonable to expect the potential false-yeller to know that the yell will be believed, cause panic and therefore cause injury.
The Koran burner receives more protection because there wasn’t a knowing falsehood in that case. The relevant mental state is not intent to harm, but knowledge of the statement’s falsity.
Okay, but what it comes down to is what is the expected reaction of reasonable people in a given situation. If people can’t safely exit a theatre then we need to re-think theatres. And safety tests.
If I’m in a theatre and a patron shouts that the popcorn has been poisoned (an intentional lie) then I can’t conceive of any action (assuming [s]he hasn’t been near the popcorn) other than ejection and ban. don’t see why their liberty has to be sacrificed.
Similarly, if the risk of injury is as low as I think it (should be) is then the intent to cause panic is again not an issue for the criminal justice system. Sue them (if you can/must) and ban them for life.
The apparent agreement that a false statement that has an incredibly small chance of causing actual harm, where the harm is unlikely unless the venue is sub-par, should go beyond the basic remedies for the discomfort and damages caused by the injured parties and spill over into denying someone their liberty is worrisome.
Well, we don’t agree that a venue where people would get injured in a panic is sub-par. We’ve learned a lot since the 1910s, but panics are like hundred year floods in that it does not make economic sense to constantly prepare for every possible event of that level of unlikeliness.
But I agree that speech that is intended to cause harm but is unlikely to be able to cause harm (i.e. an obviously false claim that the popcorn is poisoned) is not a good candidate for criminal penalty. But it’s generally quite hard to prove that one intended harm if one’s acts seem unlikely to be able to cause harm.
I find it’s easier to think clearly about this stuff if, when calculating the costs on both sides, I try to forget that I have a preferred answer.
The cost of someone shouting “fire!” in a theatre is what it is; I’m inclined to agree with you that it’s not very high, though I think you’re trying to make it sound lower than it is. The cost of preventing someone from shouting “fire!” in a theatre is what it is as well. Looking at just the first-order costs I conclude that the costs of preventing it are in general lower than the costs of it happening.
The second-order costs are less clear to me and can easily swamp the first-order costs, though. Mostly it becomes a question of whether there’s a reliable Schelling point near shouting “fire!” that I expect to prevent that from becoming grounds for supporting higher-cost speech suppression. I’m less certain about that; and I expect it depends a lot on the specific community, so I can easily see where the “shouting fire” legal principle leads to a lot of expensive bad law, and that on balance we’d therefore do better discarding the principle.
Or perhaps not.
If I were actually interested in activism on this issue, I would start by refining my estimates.
As for intent, I’d say it’s at least theoretically relevant. For example, I consider the cost of having prevented all-and-only people who wish to shout “fire!” in a theatre for malicious reasons from doing so to be significantly lower than the costs of having prevented everyone from doing so regardless of their intent. That said, the costs of implementing such a policy given current technology are onerous, so I probably oppose (given current technology) having such a law, although various cheap approximations of it might be OK.
The cost of a false shout IS low, otherwise we wouldn’t have fire drills.
The second order costs of (the state) limiting free speech when there is no direct harm is huge.
When the phrase was coined, they were almost certainly referring to the then-recent Italian Hall Disaster, in which 73 people were killed as a direct result of someone falsely shouting “fire”.
If you think that can’t happen now, substitute in your imagination some other utterance that kills 73 people in short order. Like maybe, going to a police hostage standoff and mimicking the sound of a gunshot.
As I stated elsewhere, the point of the quote is that there are limits somewhere on freedom of speech. Where to draw the line is hard, and the current First Amendment doctrine is different and more speech tolerant than Schenk.
Noting that on the one hand I don’t think our actual policy recommendations would be far apart (as pertaining to the issues at hand, at least) , and on the other that I have may objections to particulars your post above, I am going to nonetheless bow out as we are straying much too deep into mind-killer territory for my liking. I notice that you are new here, and point you toward Policy Debates Should Not Appear One-Sided and Politics Is The Mind-Killer, if you have not already seen them. Feel free to contact me privately if you would like to continue any political part of this discussion in another forum.
A theater than can protect its patrons against a real fire doesn’t necessarily equal a theater that can protect its patrons against a false fire.
Nor do I find it more reasonable to ban businesses that are incapable of protecting all patrons against the repercussions of all types of lying. I find it far more reasonable, and much of a “Schelling point” to ban spreading knowingly false information.
That’s effectively a matter of degree—you’re just saying that the punishment should be a fine instead of a prison sentence. It’s not really a difference in kind.
That is a patently false statement.
And thus the slippery slope becomes a teflon cliff.
One is criminal and the other is civil? One is a dispute between two (equal under the law) individuals in front of a (supposedly) impartial judge and the other is the state versus an individual? Quite a lot of difference really.
How do you know this? In the case of a true fire, fire extinguishers may activate, fire exits might automatically open, or perhaps the theater’s army of flying robots would come and carry everyone to safety. Or perhaps the theater is designed from such materials that it can’t catch fire.
Excuse me? The concept of “knowing lie” isn’t a good enough Schelling Point for you?
I’m in favour of banning the act of falsely shouting “Fire” in a theater, for the exact same reason that I’m in favour of banning the act of giving poison to other people while calling it “orange juice”
I don’t think you’d have any opposition to treating the latter an act of murder, why are you against treating the former likewise an act of murder?
This is a legalism, a difference in labelling, nothing else.
Again mere legalism. In practical terms, it’s the same, at least from the point of view of the accused—you get accused for something, someone is accusing you, if you’re found guilty you get punished. Simple as that.
I believe there actually is a salient distinction between the two. Namely, whereas the harm in the poisoning is the act of placing the poison in the drink and giving it to another person, the act in shouting “Fire!” is in the believing that there is no fire and the harm resulting from the shout. While the distinction would not amount to much for an all-knowing god, in reality it would probably prove difficult to establish what the person shouting expected the result to be, and to determine whether he had believed there was a fire or not. Punishing alarmist statements is indeed a potential slippery slope—if someone shouts “Earthquake!” in the middle of a crowded street and pedestrians panic and someone ends up in the traffic, shall we prosecute this shouter too? Or what if someone proclaims that the nation is under imminent threat of nuclear attack and this results in massive economic disruption as people try to hoard survival-type goods?
The problem here is that it is difficult for a court to assess whether the person actually believed what they said, and whether they anticipated (perhaps a priori rationally) that there would be no negative consequences of their proclamation.
It may also interest you to know that the original “shouting fire in a crowded theater” claim was part of a judicial ruling written by Oliver Wendell Holmes, Jr. in which the Supreme court unanimously ruled that it was a violation of the Espionage Act of 1917, to distribute flyers opposing the draft during World War I, which I think is a suitable example of its slippery slope potential. My general impression is that while there have been real instances of deaths caused by such shouts, most of these occurred before recent times, although I am not too confident in this.
Courts do this all the time. Further, there’s a well developed set of doctrines about when a person is held responsible for consequences that the person did not actually anticipate.
More generally, the quote about falsely shouting fire is not intended to support a particular test for the limits of freedom of speech. Rather, the quote makes the point that speech is not unlimited.I can agree that Schneck’s conviction should have been overturned without believing that no pure speech can have legal consequences.
As an aside, the current test in the United States is imminent lawless action, a much more pro-speech standard. Nonetheless, a knowing false statement likely to lead to multiple injuries is almost certainly punishable by the criminal law.
Thanks, that helps update my knowledge of the current standards. I certainly agree that what you say is reasonable, however I do not think that a potential for a slippery slope effect can be eliminated through carefully formulated test or doctrines (merely substantially reduced). For example, it is conceivable that in emergencies the fact that we now accept some restrictions on free speech will make it much easier to accept further restrictions and thus make unreasonable restriction more likely.
Whether that is a reasonable compromise depends on the actual danger of “pure speech” causing negative consequences, on alternative ways of mitigating them, and on the actual degree of the slipperiness of the slope. Personally, based on my current knowledge, I would prefer to pursue various alternatives before resorting to criminal legal action, however that’s dependent on actual facts and has little to do with the main topic being discussed.
This distinction breaks down very quickly. Consider Hustler v. Falwell, which limited the scope of civil remedies because enforcement of those remedies violated freedom of speech.
Or, more recently, Phelps v. Snyder, where the Court overturned a jury verdict for intentional infliction of emotional distress based on Fred Phelps’s First Amendment protected funeral protest.
Limiting the scope of a civil remedy is somewhat removed from the distinctions between civil and criminal, no?
No. If you really believe the public/private distinction is solid, then the First Amendment has nothing to do with private (i.e. civil) disputes. So Hustler should have come out the other way.
In general, American law has really struggled with the public/private distinction. I would say this is because the distinction is not rigorously meaningful—although I doubt most judges would frame it quite that way.
Regardless of the framing, American law recognizes that the situation of “two equal individuals before an impartial judge” includes the fact that the judge is an arm of government, exercising government power. What that means in practice is less clear.
Compare Shelley v. Kraemer (“That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment is a proposition which has long been established by decisions of this Court.”) with Schiavo v. Schiavo (holding that a state judge ordering the removal of a feeding tube is not state action).