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Regarding 4, to my knowledge, there actually is no law against shouting fire in a theater. Everyone assumes that there is because of the opinion in Schenck v. US[1], which more accurately stated insists that falsely shouting fire in a crowded theater is not insulation against the punishments for fraud just because it is speech.

So, despite all the hullaballoo about shouting fire in a theater, there is no (federal) law against it to my knowledge, and to anyone who knows different, please correct me.

That said, there are no ante facto restrictions on speech within a theater, crowded or not (much to our collective chagrins), nor are our first amendment rights in any way curtailed by being in a theater, being in a crowded theater, or on conversations regarding fire, whenever and wherever, time, place and manner restrictions notwithstanding -- there are simply expressions that are not protected by the first amendment, which still does not entitle Congress to make such laws, even though they already have for other circumstances, and surely will again.

Edit: The bigger issue to my mind is that Congress has, and routinely skirts the issue by implementing through regulatory agency rule-making that has the effective force of law but without requiring such a law to be actually made -- for example, the ability of the FCC to enact decency bans against news agencies on public airwaves (even thought that is also on Constitutionally shaky on its own).

[1] https://en.wikipedia.org/wiki/Schenck_v._United_States

The bigger issue to my mind is that Congress has, and routinely skirts the issue by implementing through regulatory agency rule-making that has the effective force of law but without requiring such a law to be actually made

Why is this an issue? Agencies only get their mandates from laws enacted by congress, their rulings can still be challenged in court, and they often have been, though the FCC one is permissible because Congress is apparently allowed to restrict indecent material when there is a reasonable chance children could see it.

Agencies are a critical component of a functioning democracy, because there is no way Congress could have the time or the expertise to pass a new law for every decision an agency makes, of which there would be tens of thousands.

> Why is this an issue?

Because, as opposed to the more adversarial nature of laws, regulations can be passed unilaterally, or by executive order. This makes for rules which may or may not be good, but are definitely expediant. I subscribe to Thoreau's opinion on the matter, but in the case of executive order, agencies tend to skip over or completely ignore the response for public commentary, which is yet another way to short-circuit the process.

> Agency rulings can still be challenged in court

Sure, but agency rulings, in order to be challenged, must first do harm, for without harm there is no standing. For everyone who has gripes with the idea of suing a large corporation, I would agree that those gripes are justified, and further posit that the federal government is the largest corporation of them all. It is hence impractical for a small or even medium company in most cases to fund a successful challenge to a constitutional infringement, and as the limitation of constitutional rights is considered an irreparable injury, it seems that we do it in fairly broad scale far too routinely for my liking.

Beyond all of the above, there's a very good argument, specifically due to the increasingly oligarchical nature of our government that those regulations which are crafted at the behest of the large companies as competitive advantage to smaller companies are exceedingly unlikely to be challenged at all, much less overturned.

> The bigger issue to my mind is that Congress has, and routinely skirts the issue by implementing through regulatory agency rule-making that has the effective force of law but without requiring such a law to be actually made

Agency rulemaking, in order to be valid, requires that it is authorized by Congress and that Congress has the power in the first place. So, it doesn't get around First Amendment restrictions by not "requiring such a law to be actually made".

On paper, you're obviously correct. In practice, that is not nearly always the case. This is further complicated by Chevron deference, which has often shielded even the inquiry from getting far enough along in the process to be substantive.

If your initial complaint had been about the Supreme Court finding excuses to avoid doing its job, rather than about Congress avoiding the need to make laws to do something by making laws to do exactly what they are supposedly avoiding making laws to do, I would have been more inclined to agree with you.

Fair. Still, it's a collaborative effort.

A lot of deference was assumed before Chevron, especially post-FDR, and as a result, Congress + agencies began exploiting that deference more and more, to the extent that it became somewhat codified in Chevron.

The peril of stare decisis is that to be dutiful, SCOTUS must endeavor to abide previous decisions even when those decisions abdicated on matters of law. The net result is that the process is often exploited.

Government's a big system, and I'm as wary to assign a central figure for blame as I will be hearing my uncle Roger describe any of his crackpot theories over Thanksgiving dinner this-coming Thursday, but I think it's naive to say that the government isn't getting away with things on occasion -- the discussion really is how often, and how much we should care. To that discussion, I don't aim to be instructive, as my own caring would likely be considered excessive by most, or perhaps overzealous.

> suggests that it's within the power of the President's Executive Orders to forbid public speech.

Well, the exercise was framed that the answers should be based on one's interpretation of just that sentence from the First Amendment, not one's knowledge of Constitutional law. That sentence, read on its own in isolation, does not prohibit that effect.

Of course, its also completely silly as a demonstration of the author's thesis, since context is important to meaning of language (not just law), and the exercise as framed does more to show the effect of context on meaning than the divergence between well-defined law and political law.

Fair points. Though I might quibble about the first one: most people, and many judges, would say that the executive order was a first amendment violation. But technically it's a separation of powers problem. Which itself is only implicitly, rather than explicitly, in the Constitution.

I believe you're wrong on both.

On #2, you are assuming that the fact that The President issued an order means that it must have legal force. The truth is that The President can issue any kind of orders at all. However some aren't enforceable.

I'll grant you half points on #4 though. It is reasonable for Congress to pass laws that happen to affect speech (for instance a law against fraud would do so). But laws directly restricting speech are a different matter. Where do you draw the line between the two?

If Congress can ban some speech because it's deceptive, then Congress can ban some speech.

They can't ban speech for being deceptive. They can only ban deception intentionally deployed for purposes of coercing other people. Similarly, "give me your wallet or I will shoot you" is also in a sense speech.

That distinction might not matter to you; fine. I have a bigger qualm with the Executive Order question.

The EO question is just highlighting that 1st Amendment only applies to Congress. It isn't quizzing you on the rest of US law.

And a strict reading of the first amendment would allow "give me your wallet or I will shoot you". Of course, it could punish you for actually shooting, and so the threat may be incredible.

I wonder if congress can ban a mixture of the first and second on a literal interpretation? That is, allow people to bear arms, and allow them to threaten to shoot, but not at the same time? That would be a fascinating legal question in the alternate strict-law universe.

On Q2, I don't see any faulty premise at all.

It seems clear to me that on its own, in a narrow reading Congress shall make no law . . . abridging the freedom of speech, or of the press makes no reference to the President or to any other laws at all.

Under a narrow reading of that on its own there is nothing to stop the President doing anything at all (indeed, there is no recognition of anything except Congress).

Same with the other question: for this exercise you are supposed to read this in complete isolation.

Yes, this is a pretty silly exercise.

That's technically true. The Constitution only lists a few powers for the executive/President, namely being Commander in Chief of the armed forces, making treaties, and filling vacant senate seats. I'm no expert, but I would guess that most of the authority the executive branch enjoys comes from the the phrase "executive Power," which I presume would have been understood at the time to refer to the physical implementation and enforcement of laws.

I have heard the same for the judicial branch, particularly regarding judicial review. Judicial review isn't mentioned in the Constitution, but apparently it was well understood at the time that one role of the judiciary is determining the constitutionality or validity of laws.

The President's role as Commander in Chief is arguably not a power, it's a restriction on Congress's (express) authority to regulate the military, to wit, that such regulation cannot make ask our last of the military independent of Presidential command; aside from that restriction, Congress's airport to regulate the military is plenary, so exactly what the powers of the CinC are is wholly dependent on Congress's regulation.

Also, Judicial review is simply resolving alleged conflicts between laws, particularly questions of whether laws are invalid because they contravene laws which have superior precedence under the Constitution. This is obviously within the scope of resolving controversies arising under the Constitution and laws of the United States; there's no need for every particular kind of controversy or method of resolving it to be enumerated.

That's technically true.

That's pretty much all this exercise is about, right? - find the narrowest possible reading of a single phrase and ignoring all context.