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Comment by RcouF1uZ4gsC | Hacker News Reader

Everyone in favor of banning certain speech based on its content should consider this article. When you open the door to banning speech based on content, the government will happily define something speech it does not like as "treason" or "hate speech" or whatever the favored term is.

People "shouting fire in theater" is not protected speech as a way to say that free speech protections are limited with respect to certain content. This phrase comes from Schenck vs United States https://en.m.wikipedia.org/wiki/Schenck_v._United_States that ruled that it was Constitutional to arrest someone for distributing anti-draft fliers. So be very careful what you wish for with regard to limits on free speech, you just might get it.

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What are you talking about? There are obvious and practical limits on 'free speech'. In fact, the Supreme Court has unanimously upheld a "fighting words" doctrine ensuring that speech which is by its nature injurious or likely to cause breach of the peace is not protected.

An excerpt from the 9-0 decision makes a pretty concise case, especially the latter part:

"Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' [Cantwell v. Connecticut]"

https://web.archive.org/web/20080906001323/http://laws.findl...

We can argue about definitions of 'obscene', 'likely to cause a breach of the peace', etc. But to treat freedom of speech like an unassailable, all-or-nothing fundamental assumption is not helpful.

Chaplinsky is quite outdated. It's not clear that the Fighting Words doctrine even still exists at all, but to the extent it does, it requires a physical presence inviting to an altercation by being directed at someone. Prohibitions based purely on content of speech are not constitutional. (IANAL and this is not legal advice, of course)

Indeed, I only just read about Chaplinsky -- and it seems pretty grubby and authoritarian. Just letting cops arrest people for -issing them off.

As the original article points out, the first half of the 20th century was dark time. And I'd be surprised if the present day court would rule the same way if the literal facts of the Chaplinksy case were repeated.

It's an example of what I was talking about above: it's right that you aren't allowed to use your freedom of speech to incite violence. But the court in Chaplinsky extended that to protect the violent. It's a good thing that courts have been moving away from that heckler's veto.

But I fear the way the politics of outrage is going, in 40 years time we will back to authoritarian norms that brought us two world wars.

Yeah, the Wikipedia page on 'fighting words' goes on to describe how the doctrine has since been limited. Shouting 'you are a fascist' at a cop probably wouldn't pass muster as unprotected speech these days (if you managed to make it to court alive and weren't preaching gibberish to a large crowd that was blocking traffic at the time.)

Still, speech isn't somehow inherently harmless or different from other actions that we take. It's bad to take someone's things with a knife, but I'd say that it's even worse to take someone's humanity with a word.

But you can't actually take someone's humanity with a word. That's hyperbole. Knife-point robbery is not.

"You cannot, sir, take from me anything that will not more willingly part withal – except my life, except my life, except my life." -- William Shakespeare

Well no, I can't.

But a demagogue sure can. I guess it would be more accurate to say that they take humanity from a lot of people who belong to certain classes with a lot of words, but that's a messier metaphor.

There is nothing special about speech here. In general I have a legal right to go the the park and wave my arms about. But punching people doesn't fall under that right, and wouldn't even if "the right to wave your arms about" were explicitly in the constitution.

The thing that makes people so keen to find limitations on free speech in particular is that they are often keen to supress what someone else is saying and are casting about for an excuse that they can stretch in their favour.

Compulsory reading before any legal discussion of free speech—

https://www.popehat.com/2015/05/19/how-to-spot-and-critique-...

"Trope Seven: "Fighting words"

Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte." McClatchy.com, May 4, 2015.

No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words."

In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.

That's almost always irrelevant to the sort of speech at issue when the media invokes the trope."

Disclaimer: IANAL.

I think "fighting words" is still a real thing in this sense: If I go into a bar, and say the wrong thing about someone's mother, the law is not going to be surprised that they throw a punch at me.

But in our current culture, it has to be narrow. Otherwise, Antifa is going to claim "fighting words" justifies them brawling in the streets. And, legally, it does not justify it at all.

>I think "fighting words" is still a real thing in this sense: If I go into a bar, and say the wrong thing about someone's mother, the law is not going to be surprised that they throw a punch at me.

You're incredibly mistaken, and if you act on this misinformation, you're going to find yourself in prison for assault and battery. The "fighting words" doctrine has been repeatedly narrowed over time by subsequent decisions (and may not even exist anymore), and never excused any violence in the first place. It was an exception to free speech, not the provisions in the criminal code that prohibit violence.

> If I go into a bar, and say the wrong thing about someone's mother

He'll be imprisoned for insulting someone's mother?

No -- you've got the roles reversed: the claim is that he will be imprisoned if he assaults the insulter, claiming that the insulter provoked him with "fighting words"

Think a little more broadly here. If he thinks that someone would be justified in throwing a punch if he insults their mother, then he presumably thinks that he would be justified in throwing a punch in the opposite situation.

You're quoting from a decision widely considered to have been wrong, and the reasoning of which is totally absent from modern free speech jurisprudence.

Brandenburg vs Ohio[1] overturned Schenck v United States. As it turns out that "falsely shouting fire in a crowded theater" IS protected by first amendment[2], depending upon some more complex criteria called "imminent lawless action"[3] over "Clear and present danger"[4].

Under this, distributing communist fliers is protected by the first amendment. What is not protected is Antifa's call to 'immediately' riot against their perceived enemies. The element of time is important in imminent lawless action test.

1. https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

2. https://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_the...

3. https://en.wikipedia.org/wiki/Imminent_lawless_action

4. https://en.wikipedia.org/wiki/Clear_and_present_danger

Popehat has an article about "fire in a theater" and the court case. It's very illustrative: https://www.popehat.com/2012/09/19/three-generations-of-a-ha...

> So be very careful what you wish for with regard to limits on free speech, you just might get it.

The case you cited is an example that we already have limitations on free speech. That case is tragic from my perspective because I would likely try to petition people to avoid a draft, too, should it happen now.

Nitpick: "shouting fire in a theater" is protected speech. It's not protected if you lie when you shout it. The risk of injury to others is possible either way, but your intent is what protects you.

> It's not protected if you lie when you shout it. The risk of injury to others is possible either way, but your intent is what protects you.

Falsely shouting fire in a crowded theater is ALSO protected by first amendment (Supreme Court reversed their opinion in 1969 btw). I clarified more in this other comment[1].

1. https://news.ycombinator.com/item?id=15307871

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