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Shouting FIRE in a Theater | That Doesn’t Mean What You Think It Means


I was watching a video on super princess
tea party yesterday where Maggie was talking about the ACLU. A commenter
called handful of dust said to understand freedom of expression in the
u.s. you need to understand Brandenburg versus Ohio and Schenck versus the United
States. And given the recent tragedies in the US and the subsequent arguments over
what constitutes freedom of speech and whether or not it should even be a right
I think it might be an idea to go over the rules of the free speech game. Which
is to say: any power that you give the government to arrest or imprison people
who say things that you don’t like can and will also be used against you. There
is a legitimate argument to be had about where the line is drawn but once you
draw that line it’s in that place for everyone. If for example holding up a
sign that says death to group is illegal then it’s illegal regardless of the
group. The one thing you cannot do is say well kill all green people should be
punishable but kill all purple people now that’s not important. either both are
protected speech or neither are. that said you’re still not allowed to
actually kill green or purple people. if your line is advocating law breaking
then punch a Nazi and punch a Muslim are both equally prosecutable because both
tell you to do something illegal. And prosecutable is the key here you can
fire someone for saying things you don’t like, you can write long articles on the
internet by either an awful person, you can ban them from your privately owned
space (which includes privately owned quasi public spaces like YouTube and
Twitter) but the question we talk about when we’re talking about freedom of
expression in the u.s. is this: at what point can you have them arrested? So
let’s go way way back to 1919 where we will learn that most people using the
shouting fire in a theatre argument probably wouldn’t actually agree with
the context in which shouting fire in a crowded theater was
used in the ruling. ladies and gentlemen Schenck versus the United States. The most
frequently quoted part of the ruling being “the most stringent protection of
free speech would not protect a man in falsely shouting fire in a theatre and
causing a panic” but continues “the question in every case is whether the
words used are used in such circumstances and are of such a nature
to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to
prevent” Schenck versus the United States concluded that defendant i.e. Schenck
was committing a criminal offense so if you hand someone a flier which says you
should do everything in your power not to be drafted into the army because that
is a violation of your thirteenth Amendment right that was a punishable
crime under the 1917 Espionage Act, that was encouraging criminal activity, that
was shouting fire in a crowded theater, bringing about a substantive evil which
Congress has a right to prevent. So let’s take a moment on that one
do you agree disagree are you kind of shocked by the origins of the phrase
falsely shouting fire in a theater I kind of am. okay but precedents change so let
us move to 1969. Government cannot punish inflammatory speech unless that speech
is “directed to inciting or producing imminent lawless action and is likely to
incite or produce such action” so you could based on this interpretation of
the First Amendment hand out flyers all day saying that you should try and avoid
the draft young man and that would not be illegal. if the young man actually did
try to avoid the draft that would be illegal but that’s not the same thing
and even if your flyer did mean that someone decided to try and dodge the
draft and thus committed a crime that still wouldn’t be your fault. it was not
your crime and who did not commit it. you see at the time Ohio had this statute
that said that you could punish people for the advocacy of violence which means
that if you said all Jews should die or wore a shirt that said kill all black
people or wrote in a newspaper that police officers should be shot on sight
that would be incitment to violence and thus illegal. So if Stokely
Carmichael’s famous Black Power speech of 1966 had been made in Ohio instead of
in Mississippi then he might well have been arrested for it (well again because
he just got out of jail when he made the speech) because saying things like “we
don’t have to (and don’t make any apologies about it) obey any law that we
didn’t have a part to make… we have the right to break it” and “we have to be able
to smash any political machine in the country that’s oppressing us and bring
it to its knees” might well have been considered incitement to law breaking or
violence. But the Supreme Court ruled that this was unconstitutional.
Interestingly Clarence Brandenburg of Brandenburg versus Ohio was a member of
the KKK and was arrested at a KKK rally for making a speech which well I’m sure
you can imagine that it advocated “revengeance” against black people or Jews
or people who support black people or Jews or possibly whole three of the
above groups but by taking his case all the way to the Supreme Court
Brandenburg who eventually had his right to say really hateful things upheld did
a great service for groups like the Black Panthers because it meant that
regardless of what they said unless it was deemed likely to incite imminent
lawless action it was protected speech. I am sure that Ku Klux Klan member
Clarence Brandenburg would be so happy to know that. But as Maggie said in her
video that’s legal precedent for you it works equally well for people you
support and people whose guts you hate. so Brandenburg versus Ohio tends to be
the precedent which is called upon nowadays when discussing free speech but
that’s not to say that precedents can’t be overturned. You could make a different
rule for example you could have a rule which said just saying kill insert group
here is considered incitement to violence regardless of whether or not
it’s likely to actually move anyone to take any action. That would be
consistent that would be a rule you could make. But then every instance of some
US-based dumbass on Twitter saying “I hate all… we should kill them all” would
be a punishable offense. I wouldn’t want to be on that police task force let me
tell you. like I said though one can campaign for any rule regarding free
speech that one chooses to but bear in mind that any power you grant the
government over your enemies you also grant over yourself. And if you don’t
think that a law considering any violent statement to be illegal would be used to
disproportionately target minorities then I think you repose more faith in
human nature than I do

42 Comments

  1. Valdagast Author

    Karl Popper laid out something he called the Paradox of Freedom , which said that unlimited freedom may lead to the lack of freedom (people will use their freedom to advocate for tyranny, and they may well be successful). It's something we must face, and I think it's a soluble problem – how do we achieve the freedom we think is correct. The Founders of the U.S. did it by putting in checks and balance – the government vehicle has the engine of a lawnmower and the breaks of a Rolls Royce, and we see their wisdom now. The system is working – one man isn't running the show, despite the same party having control of all three branches of government. But what happens when the power-hungry man is a political genius – a Julius Caesar or Augustus? Can any system survive such a person? Are all systems gameable? I don't know.

    Reply
  2. Bushflare Author

    That's pretty fair, but I disagree with the ending statement.

    What we see at the moment in the west is an aversion to consequences and that sword has two edges. On the one hand you have US cops who are more likely to pull over a black guy because he's less likely to be related to someone who is rich and/or powerful, which is not directly motivated by racism but by aversion to consequences, and on the other hand you've got cases where the backlash against any perceived action against minorities forces people into inaction. (Rotherham in the UK).

    Ultimately, when you really look at the state of the world today you don't see oppression/protection of minorities as an intention but it seems to be overwhelmingly related to aversion to consequences.

    Why is Marajuana still a schedule one drug? Because it gets black people in jail? No, because few people want to take the risk of agitating their voter-base by challenging the status-quo. It's only recently now that big companies have started getting involved that you've started to see the wheels getting greased in these matters.

    There's a lot in the world today that I disagree with but ultimately it seems that the vast majority of racial protection/oppression is a side-effect of another problem. It's a problem in and of itself but if the conditions of the other problem are altered then the race problem would be at the very least massively less pronounced.

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  3. Cute Justice Author

    What is going on lately is not the end of all things but an old, pulsating tumor on the human subconscious that was cut open and all the puss and rotten blood is gushing out. It's a spectacularly ugly sight to behold but the tumor may finally begin to heal when it's allowed to bleed and dry. The world is moving forward and we privileged white dudebro's will be forced to follow if we ever want to regain some of our dignity. Everyone should just embrace the diversity. The newest post-millenials generation is doing it already. I can see it in the streets of Antwerp.If I have the chance, I will marry someone who is NOT of my own color. I totally prefer it that way. And it's the only way to "structurally" fix this.

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  4. Arella Jardin Author

    One of the unfortunate consequences of our Freedom of Speech, is how easy it is to spread misinformation in this digital age of interconnectivity. We have hateful personalities that train their audiences to only trust them and never believe even sourced material as "fake," and it's allowed. Even when the misinformation leads to impressionable people taking violent action, its next to impossible to prosecute the purveyors of the lies. A man holds up a pizzeria because he was told they run a sex slave racket in the basement, and the people who spread that lie aren't held accountable. A few years ago, a man shot at cops because a radio host kept saying they were coming to take our guns, and the radio host could not be sued.

    Hilariously, one of the campaign promises of the current President, was that he wanted to make it easier to sue for libel and slander. This would have had the opposite consequence of his favored news outlets being sued into oblivion, since they typically rate very low on accuracy. I'm certain the people around him to back off that issue, for fear it would destroy conservative media. It's true, the blade cuts both ways.

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  5. FIDreams Author

    I'm only responding to this because of Jill. I usually leave my personal opinions in the realm of 'Live and Let Live'. I've come to the conclusion that people just want to be hateful, fearful and distrustful. That can be the only reason. I myself in saying this will most likely cause a stir however it seems true and can be the only outcome. There are those who want equality but it is mired in a sea of red faced shouters who think equality is 'I should get my Way before Anyone Else' (That's not equality, not even close) and it Really doesn't matter what side you're on. Everyone is to blame. Everyone doesn't like it, but everyone loves to hear about it. The point is, hate, fear and distrust isn't going to go away. People love hearing about it in this day and age unfortunately.

    Reply
  6. Sophie Birch Author

    Without sounding like an picky ass, why include TERFs in that list since they are people with horrible beliefs that transgender people, especially transwomen, do not deserve rights, especially light of what has happened to trans rights in the last month? I think your point would have been better had you actually included LGBTQ+ within that list since they are marginalised and subject to far more abuse than TERFs, especially when it comes to kill threats.

    Reply
  7. Emily Wilkerson Author

    You talk about the problematic elements of restrictions on free speech and how it is used across the spectrum to target both minorities and the prejudiced with a larger focus on the former… but the US is one of the few nations that has such stringent protections of free speech, however other nations such as Canada, who for example can bar the Westboro Baptist Church from protesting a funeral which the US can not do, doesn't seem to be dealing with some of the issues you bring up. Of course, perhaps that is just me being uninformed about non-US countries, but your proposition doesn't seem to immediately hold up relative to other western nations that prioritize free speech but have more restrictions on it. So… is there evidence of other western nations having the problems you propose, or is there not?

    Reply
  8. Amaranth Author

    I think the end point rather contradicts the earlier statement that if you say that once a standard is set, it works both ways. It usually doesn't, because it usually disproportionately targets minority groups. The reality is we're seeing a lot of abuse of authority in the US as-is, and there is a standard for minority groups and a standard for everyone else.

    This is a problem because those white supremacists already enjoy a de facto protection that other groups do not. Even after violence is committed, they're treated with more civility than black people, who have been the subject of violence for peaceful protests. God, imagine if a black man had driven a car into a crowd of white people. There's be none of this "violence on both sides" nonsense.

    Now, there's always the potential that these will come back around to haunt then current majority. In a couple of decades, it's projected that white people will become either a plurality or a minority in the US. In a further future, we could become an atheist society, a Muslim society, or whatever. Should those changes happen, then the majority of today could see those same consequences. Could, because bigoted white dudes have been very good at holding onto power in the country.

    Sometimes, the protections gained by the majority benefit the minority. Yes, the KKK benefiting black groups is a decent example of that, but it's rather cherry picked. It requires not only the resources to fight such a case, but it requires a judicial system that will uphold justice for civil liberties. And even then, it doesn't make everyone safe. Loving v Virginia was in the 60s. There were cases that dealt with it into the 80s. We're still facing issues over same-sex marriage and I imagine we will for quite some time. Actually, a better example might be the way we're still seeing issues with "Miranda Rights." That's a fifty year old ruling and it tends to be minorities who are targeted.

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  9. Jonathan S Author

    I dunno. I still prefer the European Convention on Human Rights model (See https://www.theatlantic.com/politics/archive/2017/08/what-europe-can-teach-america-about-free-speech/537186/). I fear that the US model of free speech makes us vulnerable to fascism and racial violence. Especially when proponents of racial violence can augment their free speech with TV networks and major media outlets…

    Reply
  10. chromesthesia Author

    there has to be some way to create a hostile environment where nazi and kkk types cannot thrive. unfortunately considering what we have for a president these folks have a nice dark dank environment to be as mouldy and horrible as possible.

    Reply
  11. catiedoesit Author

    This is pretty much where I stand on free speech. I don't think the laws are a nuanced as they need to be given our current political climate but I understand that it's very hard to regulate speech, especially with the widespread use of social media.
    So we, as socially conscious people, need to be aware of what does and does not constitute a public platform (spoiler alert, fb and twitter are privately owned; they have every right to kick you off) and what is and isn't inflammatory (saying that cops need to be aware of their racial biases is not the same as saying that ALL black people are thugs).

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  12. Aarzu Author

    This was a very level-headed discussion of a heated topic. Great work, Jill. I really appreciate that you clearly did good research and are very correct in saying that when a line is drawn on a subject, that line is in place for everything. It applies as strictly for one group or individual as it does for any other.

    One thing that I've been thinking about lately, with the present issues, is if certain kinds of speech, including hate speech, is protected for individuals, what about if said speech is being said by a known terrorist group, like the Neo-Nazis, etc.? Also I think phrasing is also something to examine, but mostly I'm wondering if saying "All (group) must die!" being said by an individual with no active affiliation with a hate group/terrorist group is the same or should be treated the same as a member of a hate group, a group who has made and carried out threats of harm and violence saying it.

    You kind of phrased it this way, but my interpretation of the limit on free speech was that the limit was when that speech intended to incite harm in some way, whether it be threats or instigation of violence.

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  13. movelea Author

    A black person calling for the deaths of white people is just as wrong as a white person calling for the deaths of black people. That the black person here would be arrested too is not an argument against refining the definition of incitement to violence. I know that I would be arrested if I called for the deaths of people too if the law changed that way. Why would I want calling for deaths to be illegal if I call for people's deaths?

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  14. the fatimagic Author

    two things here. when people make false equivalencies amounting to "x oppressed group is doing the same thing as y oppressor", it misses the point entirely. because of the nature of sociology and implicit biases, the oppressors are always going to be the ones who have the power. so when an oppressed group does the same thing, most of the time it's reactionary , and done as a means to cope and survive. a black person whose community has been repeatedly harassed by white law enforcement, for example, can say "fuck the police" as a reaction to said harassment. the cops are not being targeted on a large scale solely for their whiteness. but when a white cop says "fuck black people", it enforces biases against that entire group because that group is already among the oppressed because of their race. false equivalencies are made by people who don't understand how oppression works.

    that's not to say it fine for an oppressed person to randomly kill anyone they want–murder is murder. but sometimes, you have to take the context into consideration, which leads me to my next point. the context of agendas like those of the nazis, kkk, etc. is that of genetic cleansing. they don't want to and will not stop at "spreading their message." history tells us this time and time again. the goal of social justice groups is social equity. the goal of white supremacist groups is the death of a mass amount of people. their message directly advocates for the death of countless innocent people. and anyone who spreads messages that call for such a thing counts as a clear and imminent danger. this isn't sean hannity going on fox news and telling his viewers "x people are evil and gross." these are group of people literally and seriously saying "kill all x." some frustrated rando on the internet who does not believe in genocide saying, "kill all x" is completely different from a white supremacist whose whole ideology is "kill all x." again, it's a false equivalency.

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  15. Rocketboy 1313 Author

    "Punch a Nazi and Punch a Muslim" are not the same.
    Nazi is an ideological movement that is built around pseudo-science ideas about destroying lesser races. Islam is about surrendering oneself to God.

    One could say that supporting Nazi Ideology or similar policy and participating with them in any such context is by its very nature violence. Saying, "I support genocide and will work toward its implementation" is violence in the long term even when it is not immediate.
    I do feel that people have a right to oppose Nazis and such ilk in the immediate.

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  16. Painocus Author

    Except that laws can target specific political groups (like Germany has banned open display of Nazism) and opinions (like France has banned denying the Holocaust). The United States themselves used to do this with Communism.

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  17. ZipplyZane Author

    The thing is, the first part of what you say isn't true if minorities will be prosecuted more. The real way to deal with this is for us as a country to really get that bigotry is wrong and treat it as such. Saying you can't be bigoted is fair on all sides. And all it takes is a favorable court for a while until it becomes a norm and we edit our constitution to be like that of more civilized countries.

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  18. me nosay Author

    Used to disproportionally target minorities? I was with you till that statement. Us Asians are more of a minority then Black people, but we are targeted very little by the law, certainly less then White people. The reason people are more targeted is a lot deeper then "they are not White, get them", but that is another matter.
    In fact, when it comes to freedom of speech concerns Media corporations like Google, Twitter, Facebook and Youtube, Mainstream Media, Celebrities, Democrats, all give far more leeway to PoCs and their allies then to White people and PoC that speak out against the far left. Yes, it will turn against everyone eventually, but it is NOT minorities that are the main target these days, and your concerns it will naturally target them more is ridiculous, at least in the current climate.

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  19. Tweedlebean Author

    The issue I've found that in most cases you can't even get that far. People flat out don't understand that Freedom of Speech ONLY affects what the law can do to you. There are so few people I've seen who actually know that. People genuinely think that Freedom of Speech means "people can't protest or attack me or kick me out of their privately owned space for what I say." That's why you see people saying that their Freedom of Speech has been violated when they're kicked out of public businesses for being racist to the staff.

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  20. death69k Author

    Great Video. Finally somebody accurately describes the censoring that happened in Schenk. Subbed for truth and knowledge. Gonna binge ya(sounds nasty).

    Reply
  21. The Pod Bay Doors Podcast with Doug and Jerry Author

    Hi Jill.
    Jerry here.

    Okay, your braid looks amazing. I'm just putting that out there.
    I actually had to watch the video twice because the first time I couldn't concentrate on what you were saying because I couldn't stop gawping at your hair. It's a twisty kind of wonderful.

    And you're a lovely girl too, which just adds to the effect.

    Reply
  22. Elmnopen Author

    A lot of good info and I agree with most of it. But your last line, the people who are persecuted in America right now are not the minorities so that makes your argument incorrect, and I'm glad to see you included them in your list of people who could be persecuted unlike everyone else in this country. All pretending that Christians are not the ones on The Chopping Block

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  23. Brian Arbenz Author

    My grievance is with people who mistake rebuttal for censorship. Yes, you have the right to state that Oswald never went to the flat moon, or LBJ killed Elvis, but if people respond by condemning those views as preposterous and refusing to do business with you, you are not having your First Amendment rights abridged — you instead are experiencing consequences for your chosen actions. And that is just as much a part of a free society as free speech.

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  24. K ris Author

    When you create a system that gives arbitrary powers to punish what one does not like, your system relies on “having the right guy in power” in order work and is thus a shit system

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  25. Maria Callous Author

    fire is a metaphor as to what constitutes any language that inspires violence or harm to people. If I yell out in an assembly of people I want to replace capitalism with socialism is that fighting language? It is. Nancy Pelosi just yelled fire when she said the State of the Union Address is cancelled. There were an avalanche of death threats and there will be killing. People have a responsibility to watch what they say. They don't. The constitution was written for lawful people and not lawless people. It was written for reasonable people and not unreasonable.

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  26. The Humble Geometric Figure of Doom Author

    I like the content of the video, however, it felt a bit over-extended. Adding visual representations, maybe amusing images any other visual elements reinforcing the context would greatly benefit your videos.

    Reply

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