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Comment by rm_-rf_slash | Hacker News Reader

"Free speech" is not "free beer." Shouting "fire" in a crowded theater has been widely accepted as harmful speech and as such is not free.

As an American, I have the right to bear arms (ok the constitution actually says not to infringe on "a well-regulated militia" but bear with me), but not the right to spray automatic gunfire wherever I please.

I disagree with your assertion that "our society doesn't view free speech as a consistent principle." Of course we do. Free expression is a staple of Western civilization, and shows us how far we have come from mandated religion and the sanctity of the nobility.

However, free expression can be damaging in certain circumstances. It is a testament to the strength of our civilization and our values that we find ways to mitigate the harm from certain kinds of expression, rather than scrapping the 1st Amendment altogether. It lasted over 200 years, why not 200 more?

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It's ironic when people use this quote to justify banning "harmful speech", not knowing it was an excuse for jailing peaceful protesters under the police-state 1918 Sedition Act. 'Shouting "fire" in a crowded theater' is a phrase from Oliver Wendell Holmes, Jr.'s opinion in the Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft was not protected free speech under the First Amendment.

Holmes Jr's opinion was overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).

And of course, it was overturned in Brandenburg v. Ohio in order to protect the Ku Klux Klan and their ability to burn crosses, a symbol they used to threaten blacks who stepped out of line with lynching. Anyone who claims that freedom of speech somehow protected the powerless in the US is full of shit.

Thank you! I think most are missing the context of the quote. My high school history textbook had this direct quote, mentioned it was a Supreme Court case, but did not discuss the case itself. Funny how that works.

I don't see why you think that one shouldn't be able to shout 'fire' in a crowded theater, and be prosecuted accordingly for inciting a riot and damage to the property if such were the case (but not for the speech itself).

The problem with your position, is since we aren't dealing with 'what did happen' but with 'what could have happened' it becomes an ambiguous and potentially abusive provision - highly subjective to personal biases.

But it is a position that we apply all the time in a complex society. We have speed limits which we enforce because higher speeds could lead to an accident. We have building codes because shoddy construction practices could lead to a fire. We have vaccination requirements because a lack of them could lead to an outbreak.

These are all laws meant to protect us from each other. I suppose you could argue with any of these on principle, but it's a pretty standard part of our social contract now.

I would personally argue that the society we live in has reached a level where we are incapable of being fully informed about all the risks, requirements and possibilities. We have to own cars to buy groceries, go to work and raise our kids because neighborhood grocery stores and schools are no more. We can't all be expected to be experts on HVAC and electrical because we've spent the totality of our existence in highly specialized training for whatever it is we do. We live in an incredibly close quarters society, and history has shown us that vaccinations are almost a must.

Making laws based on what could happen just seems like common sense given these realities.

> But it is a bias that we apply all the time in a complex society. We have speed limits which we enforce because higher speeds could lead to an accident.

Yes - but we also don't have an amendment which says:

"Congress shall make no law abridging my right to drive fast"

Preservation of free-speech is specially important in a way that the speed-limit on the highway is not. So I would say these aren't analogous applications of bias.

> I would personally argue that the society we live in has reached a level where we are incapable of being fully informed about all the risks, requirements and possibilities. We have to own cars to buy groceries, go to work and raise our kids because neighborhood grocery stores and schools are no more. We can't all be expected to be experts on HVAC and electrical because we've spent the totality of our existence in highly specialized training for whatever it is we do. We live in an incredibly close quarters society, and history has shown us that vaccinations are almost a must. Making laws based on what could happen just seems like common sense given these realities.

You could also go further e.g. "I would personally argue that the society we live in has reached a level where we are incapable of being fully informed about all the risks, requirements and possibilities. Anti-vaccination speech should be outlawed, the practicants of such speech are a menace to public health, their children and others children."

Putting speech into the category of acceptable bias without effect, is a dangerous path..

That's a fair enough point, but I think most would agree that the constitution doesn't always keep up with the times. This leads to our constant interpretation and reinvention of it (see the conflicting decisions of Plessy v. Ferguson and Brown v. Board of Education). I don't think it's perfect, but I would also argue that it's not dangerous, in fact it's necessary.

Indeed, laws like trademark and truth in advertising are exactly what you are suggesting could happen. They are laws that protect consumers from potential harm created by false claims. It's not a limitation on political speech, but fact. I don't think anti-vaccination speech being illegal is actually too terribly unreasonable. I guess in my day to day existence I would rather live in a culture where I'm generally protected from potential harms so I can go about my day with less worry. Could those limitations reach a point where I find them unreasonable? Surely they have and surely it has happened in the history of the United States, but I think it's a testament to the culture and its institutions that we've rebalanced when we've gone too far one direction.

> I don't think anti-vaccination speech being illegal is actually too terribly unreasonable.

That would let you ban publication of a rigorous, well-done study that found actual harm from some vaccinations. That is not a good path to be on.

Perhaps I didn't phrase it well. I should say "unsubstantiated and speculative anti-vaccination speech". If you've got a study that is generally accepted by the medical community, that's one thing. Going on Oprah or taking out ads in magazines is another entirely.

> If you've got a study that is generally accepted by the medical community

If you want to get unsubstantiated and speculative anti-vaccination speech outlawed, you need to convince a majority of people to do it. In such a case, it seems likely that the medical community would also contain a majority convinced of the worthlessness of anti-vaccination speech, thus relying on them to substantiate it would be pointless.

In general, what you're describing is tyranny of the majority that a constitution is meant to prevent. Even if we had the omniscience to determine that vaccinations are now perfectly safe and give brilliant results, outlawing speech against them makes them a protected category, which is ripe for abuse. The argument will shift from pro/anti vaccination to "this is not a real vaccination", subverting whatever your intention of outlawing the speech was. Meanwhile, the things billed under 'vaccination' will slowly morph as time advances, as people fight to classify more and more medicine under it, to protect their drugs from criticism.

This is exactly the thing that happens already under every exception to the First Amendment in the US, and why courts would repeatedly narrow down each exception, refusing to expand it further. Are you prepared to add this to the list of things to be eternally vigilant about? How confident are you that the courts will continue to defend narrow limitations when given an ever-growing list of them? Most importantly, do you think your new law will have any useful effect, given that people are notoriously good at subverting narrowly-crafted censorship, and broad censorship always has unintentional side-effects?

Fairly confident, if only because we already do it, and don't seem to suffer for it. I want to emphasize that I'm not advocating the suppression of research, but of demonstrably false and harmful claims. That is something that exists and is a fairly narrow test. Arguing for healthy people to not receive vaccines definitely falls into this category. It not only harms the people who don't get them it harms the rest of us as well.

In fact, I would say the expectation exists that the government will do that. We have come to take for granted that the products we buy are safe and the claims we see are true, precisely because we accept that it's reasonable to expect speech to be limited in this way.

Regardless, I don't want to lose the thread. Anti-vaccination is not a commercial enterprise, no one is making false claims and selling them (well, some people are, but not as a product). The example was fair, and I can acknowledge that I may be wrong on that.

But I stand by that we can, and should, be allowed to limit speech to prevent harm, just like we limit all sorts of other things for the same reason, including things that are constitutionally protected.

Not only was the "fire in a crowded theatre" thing a quote from an oppressive anti-free-speech decision that has since been overturned, it was dicta that was neither citing nor setting precedent and has never been an accepted application of first amendment law.

> Free expression is a staple of Western civilization

And yet, so many Western countries disagree about what it actually means and have different laws. There's differences in places and time. Cinema and movies weren't covered by 1st Amendment for decades in the USA.

I require an example of this claim.

Differences in free speech law geographically? France & Germany are a western countries, have a constitutional protection of free speech, and ban Holocaust denial. The USA is a western country, has a constitutional protection of free speech, and Holocause denial is legal. France, USA and Germany disagree if "banning Holocaust denial" counts as interfering with free speech.

For cinema in the USA, a 9-0 Supreme Court case in 1915 found that movies weren't covered by the First Amendment. That was overturned in 1952 ( https://en.wikipedia.org/wiki/Joseph_Burstyn,_Inc._v._Wilson )

Thank you, exactly what I wanted.

We're fine with free speech as long as it doesn't threaten the status quo.

As soon as you get - e.g. - Snowden or Manning, the speech suddenly stops being free (of consequences) even though it's in the public interest.

We're certainly not fine with free politics. Politics currently is still stuck in a medieval mode where it's entirely about about profit and power, not representation.

The establishment in most countries will fight to the death to keep it that way.

I would rather live in a western democracy where speech is considered free until it is curbed, instead of a Muslim theocracy or Asian dictatorship where speech is forbidden until it is permitted.

> Shouting "fire" in a crowded theater has been widely accepted as harmful speech and as such is not free.

So if speech is harmful it can be banned? That's an interesting new exemption.

A very interesting, very old exemption. Its been around for generations, and is pretty much the entire topic around all issues of what is allowable and what is not.

So Holocaust denial should be banned because it's harmful?

That's the law in Germany.

Which is a bad law, it simply opens the door for banning other "harmful" speech that somebody gets to decide for everybody else. It's the old shameful joke that no one reads history so they keep repeating it.

The legacy of Nazi Germany is a national shame. Millions of people cannot be un-murdered. It could have also resulted in much worse conditions for Germans and national sovereignty (like America's domination of Japan's postwar constitution).

Banning holocaust denial is the national equivalent of recoiling one's hand after touching a hot stove. Most Germans really, really do not want to go back there.

I'm not saying they need or will go back there. I'm saying that the act of banning one type of speech always leads to a group with power and not so honorable intentions the ability to ban speech they don't like. The law is already there for that.

Freedoms, rights, and laws don't exist in a void. At least in the United States, they exist to better the welfare of the people. It's not a "new exemption" - jails do exactly that: limit one person's rights and freedoms to maintain those of others.

No right is unlimited, and that isn't new. You waive your rights when they directly endanger other people's rights. You don't have a right to life if you're about to kill someone, you don't have a right to liberty if you're a danger to the public, you don't have a right to free speech if your speech is directly harming people.

These are very basic and very old exemptions.

I understand your viewpoint and from a moral perpective, I agree with it. But how can you assert the US, or western civilization as a whole, is consistent in it's protection of freedom of speech? Your first sentence illustrates that example perfectly.

Personally, I think shouting 'fire' in a theater should be 'free and legal' for a few key reasons.

First, it allows the morality of individuals in a society, not the morality of a few in power, to be the consequences of another's action. Second, if a bigot refuses service, shout's slurs, or yells 'fire' in a theater, it may hurt my feelings, but you bet your ass I want that information. By silencing people whose morals i disagree with, you don't change their morality. You only shield it from me, so now I don't know about it.

You are flat wrong.

If you shout fire in a crowded theater (in which there is no fire), and the crowd pushes and shoves to race to the exit (if it can happen at a Walmart on Black Friday it can happen in a theater where people don't want to burn to death), and people get injured or even killed, forget about morals, you could be liable for manslaughter.

By banning shouting "fire" in a crowded theatre, you also prevent people from warning you when there IS fire. Now you've created perverse incentives. I suspect there might be a fire, but will not speak up until it is too late.

Bad speech can be countered by MORE speech. Ban on speech cannot.

facepalm

Did you honestly believe I meant to say that people should not be warned about an actual fire?

No, you didn't mean it. I'm saying that there is a trade-off involved in banning any speech. suspect is the key word.

Depends on intent. Your example of manslaughter would imply no initial intent to cause harm, therefore you are held responsible for the outcome and not what caused it. If you were to shout fire with the intent to cause death, then that would be premeditated murder. In that case you are held responsible for the outcome as well as what caused it.

Regardless, you certainly do have the First Amendment right to shout fire in a crowded theater (the quote everybody refers is bad law), the government will not actively try to prevent it; you just may have to deal with the legal consequences of using your right in such a way.

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