Comment by bmelton | Hacker News Reader

Comment by bmelton | Hacker News Reader

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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

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.

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.

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