How Come I Know The Law Better Than A Guy Who Taught Constitutional Law -- Who Also Happens To Be President?
I was listening to CNN from the bathroom while getting ready last night, and the President was talking about his new measures to tighten regulations on gun purchases.
Well, I couldn't believe it when I heard this: Seconds after bragging that he should know the law about the First and Second Amendments because he "taught constitutional law," he said it: that we "can't yell 'fire' in a crowded theater."
Now, I'm no legal scholar, but I follow enough law bloggers and am interested enough in the law that I have heard NUMEROUS times that you, of course, CAN yell "fire" in a crowded theater...providing there is a fire.
Okay, so maybe he was using that in the colloquial way it's thrown around, but seconds after bragging that he was a constitutional law prof?
Also, about that quote, Trevor Tim writes at The Atlantic:
Oliver Wendell Holmes made the analogy during a controversial Supreme Court case that was overturned more than 40 years ago.
More:
Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known -- yet misquoted and misused -- phrase in Supreme Court history: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."Without fail, whenever a free speech controversy hits, someone will cite this phrase as proof of limits on the First Amendment. And whatever that controversy may be, "the law"--as some have curiously called it--can be interpreted to suggest that we should err on the side of censorship. Holmes' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood.
...But those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they'd realize it was never binding law, and the underlying case, U.S. v. Schenck, is not only one of the most odious free speech decisions in the Court's history, but was overturned over 40 years ago.
First, it's important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU's Gabe Rottman explains, "It did not call for violence. It did not even call for civil disobedience."
...In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).
Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as thefinal word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it's "worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech." Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, "the most famous and pervasive lazy cheat in American dialogue about free speech."
Ah hah -- Ken White -- that's surely one of the places I've seen it.
The President is a liar.
No one should be surprised by anything he says.
On topic, he claimed that felons can buy a gun online. Nope. LIE.
Radwaste at January 5, 2016 10:29 PM
"...taught Constitutional Law..."
Have we every heard from anyone that sat in one of these classes he taught? For the life of me, I can't remember ever hearing anyone come out and say "Hey look there's my old Con Law prof! Man he really knew his stuff"
mer at January 6, 2016 4:32 AM
He was a professor the same way adjuncts are professors.
http://www.factcheck.org/2008/03/obama-a-constitutional-law-professor/
Amy Alkon at January 6, 2016 5:28 AM
Well, yea, maybe he "taught" constitutional law; but, one day he could also say he "presided" over the US.
Mind you, no where does that sentence say anything about quality. Because that just isn't there!
charles at January 6, 2016 6:44 AM
Oh, felons can try to buy a gun online.
But as noted, that's a lie via omission. When you purchase a firearm online, it gets shipped to your local licensed firearms dealer (FFL) of choice. You then appear at their store, they run the NICS check on you, and if you pass, charge you the cost of the check, and then complete the transaction.
The notion that FedEx/UPS/USPS will just drop a firearm on your doorstep is silly.
Of course, the other option is that Prezy McBumbles is ignorant of what he's talking about. Actually, that's not a bad bet.
I R A Darth Aggie at January 6, 2016 8:22 AM
More Ken White:
I R A Darth Aggie at January 6, 2016 9:02 AM
I like the crowded theater example.
Back in the day, fires were scary. Many died in theaters. A false cry of fire in a theater would likely result in a deadly stampede.
These days, fire exits and sprinklers make deadly fires rare (outside your occasional Great White concert).And,people are so damn complacent that, if you did yell fire in a crowded theater these days, you would likely get a bunch of blank stares and profanity directed your way in return.
I am tempted to test that hypothesis, but I don't get out to movies very often.
-Jut
JutGory at January 6, 2016 9:14 AM
Two things struck me about his speech (which I heard on the radio driving home from work).
One, as Amy mentioned, there was the crowded theater comment. The "when there is no fire" part of Holmes' assertion is a very important part. I let it go at first, figuring the president was just shortening the statement for convenience, but now I'm not so sure.
If he thinks the government can restrict speech that might cause a panic, then indeed one cannot shout "fire" in a crowded theater, even if there is a fire. However, if one understands that the restriction Holmes was advancing is only on speech that has no aim but to cause a panic, then one understands that speech that might cause a panic, but is true (or believed by the speaker to be true), is protected.
The second WTF moment was his assertion that criminals are buying guns online. Really? They are? Last I heard, shipping guns without a federal firearms license is a felony. When I shipped an inherited set of guns to a friend in another state, another friend who is a federally licensed firearms dealer, told me I'd have to clearly identify them to the shipper and ship them to a licensed dealer from which my other friend could pick them up in accordance with law in his state (three a month in that state). So, he worked with a licensed dealer in his state and we got the guns to him.
How the heck are people buying guns online with such restrictions?
Now, they might be getting around that via Craig's List or eBay, both of which I believe restrict the items that one can list on their sites. Perhaps there is some dark Web site for contraband materials doing a brisk firearms business with felons about which we law-abiding folks don't know, but the president has been made aware. Or perhaps the president was engaging in hyperbole, ginning up fear that criminals are acquiring and hoarding guns and will rise up and kill us in our sleep if we don't embrace his policies.
Conan the Grammarian at January 6, 2016 9:43 AM
The thing is, you actually can falsely yell fire in a crowded theater. You may face repercussion for doing so, but if the government prosecutes you, they have to prove that (1) you knew what you were saying was false, (2) it caused actual harm, and (3) you acted with malice or gross negligence. Trying to actually prevent you from shouting fire in a crowded theater is known as "prior censorship", and it's prohibited for the government to do anything that even hints of that, in nearly all cases. I recall a case in Alabama in the early '80s where a district attorney wrote letters to bookstores and magazines in his district, warning them that the owners and staff could face prosecution if they carried Playboy or Penthouse. A state court shot this down dead, censuring the DA for an act of prior censorship and strongly hinting that any such cases brought before it would be immediately dismissed.
On the side topic: I've read up on the Iroquois Theater fire. The interesting thing is that, in the early part of the event, it was pretty much the opposite of a panic even though people were in fact shouting "fire". Most people refused to believe what their own senses were telling them: the performers wanted to go on with the show, and the audience either thought it was a special effect (a particular hazard in performance art venues), or they just weren't willing to give up the hard-earned money they paid for admission. One well-known actress, who had escaped out a stage door, stubbornly went back in to retrieve some article from her dressing room. She didn't make it back out. The panic didn't occur until the building was well involved, by which time it was too late anyway for most of the people still inside. People who were quick-thinking and recognized the event early had plenty of time to escape.
Cousin Dave at January 6, 2016 12:58 PM
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