Hacker News Reader

Comment by Maursault | Hacker News Reader

> You can't yell Fire in a movie theatre if there's no fire.

Actually Schenck v. United States was partially overturned and severely limited 53 years ago, so that hasn't been correct, technically, for some time. iow, you probably can shout fire in a crowded theater, but it depends on the circumstances whether you'll be arrested, whether you've presented a clear and present danger, whether you caused a stampede, whether anyone was injured or killed. But if you are arrested, it won't be a free speech case. The charge will be disorderly conduct, or negligent homicide, or some other charge. Justice Holmes' quote has sort of taken on a life of its own as a determination of what speech is not protected, but really there's no law against it. FWIW, I'm not advocating for it, just being pedantic.

View on HN

> Actually Schenck v. United States was partially overturned and severely limited 53 years ago, so that hasn't been correct, technically, for some time

Actually, the “fire” line was dicta in Schenck, so it technically was never true.

And it was part of an argument in support of the government shutting down opposition to the draft.

> The charge will be disorderly conduct, or negligent homicide, or some other charge

This…seems like splitting hairs in a way to me.

It seems like a pretty clear acknowledgment that, in certain contexts, speech can be criminal.

After all, in those various charges it won’t be a free speech case because it’s settled law that speech in those particular contexts can result in a criminal charge.

So, I agree that the infamous line from Schenck (which was dicta already) is not good law. On the other hand, there is a kernel of truth that certain speech, in certain contexts, can be illegal and result in criminal charges.

It's wild how the "fire" argument continues to be regurgitated as if from the mouth of a network talking head. Thanks for dousing that quickly.

Maybe you should read Brandenburg v. Ohio first.

Good to have mentioned this. The interpretation of "immenent lawless behavior" varies greatly. My wife is an attorney and very recently was on a case where this particular case was cited. While I get your intent in mentioning it, the case is very specific and while Schenck is cited, it does not translate directly to "you can't say fire in a theater," but rather it's far more nuanced. It also doesn't change the fact that the "fire" argument is a lazy slinging of words lacking appropriate nuance.

If we are paraphrasing for the general public I think nuance was thrown out long ago with the bath water. Yelling fire in a crowded movie theater is a paraphrase itself, obviously context matters and always has.

Oh, here we go. Someone expressing an opinion you find extremely offensive on the internet is equivalent to someone directly, unambiguously causing a stampede. But, but, those hurtful internet words caused the “capital insurrection”! When did the modern liberal turn into the christian quack?

Reply on news.ycombinator.com