Well, they could probably bring up the "yelling 'Fire!' in a crowded theater" argument, but I doubt anyone got trampled to death in the mad dash for the exit because he said he had a bomb in his pocket.

While I fully support free speech; especially at these (I agree with what you call them) "bend over and spread 'em" checkpoints, I get the feeling that this young fool's point wasn't about protesting their search. It sounds more like he was being just that, a smartass fool. There is a time and place for that and this wasn't one of them.

Despite what the Lisa says ("Because, don'tchya know, if you really did have a bomb in your pocket, the first thing you would do would be to announce it to all and sundry.") I really think they do have to act as if what he is saying is true. What if they dismissed his claiming to have a bomb as a joke and it turned out to be true?

Not that it is the same; but German authorities saw some folks jump a fence surrounding the Olympic Village late at night during the 1972 Olympics and assumed that it was some athletes coming back to the Olympic village after staying out past curfew. If they had not assumed such they could have prevented the murders of Israeli athletes.

Protest all you want about overreaching security; but, don't mess with it to the point that folks can get hurt. Too many people joking about having a bomb and being allowed to continue as if they don't could very well lead to the same thing that happened in Munich - the authorites assumed that it was just a harmless incident when it was a a bunch of murderers out to kill innocent people.

Sorry, Amy. I'll respectfully disagree with you on this type of case.

P.S. for whatever its worth, I too have cracked jokes as such checkpoints - "well, why don't we just strip search me and be done with it" and nothing ever happened to me. But, I would never have joked about having something dangerous or intending harm to others - that's the difference in the jokes.

Protest all you want about overreaching security; but, don't mess with it to the point that folks can get hurt. Too many people joking about having a bomb and being allowed to continue as if they don't could very well lead to the same thing that happened in Munich - the authorites assumed that it was just a harmless incident when it was a a bunch of murderers out to kill innocent people. -- Charles at August 6, 2013 7:11 AM

Your point is valid if the statement was being said and then he would have still been allowed to board the plane. He was still going to be porno-scanned or groped after he said it, so it doesn't matter.

@Charles: Your post makes no sense.

"What if they dismissed his claiming to have a bomb as a joke and it turned out to be true?"

That's why they are searching him: to make sure he doesn't have a bomb. And if you are saying security can't search someone effectively enough to rule out bomb possession, what are we supposed to do about actual terrorists who have bombs and don't announce it?

Either way, saying that you have a bomb does not:
(A) Change whether or not you do actually have a bomb, or
(B) Make it easier to smuggle one past security. (In fact, it singles you out for extra searches and makes it harder).

So why do we violate the constitution to arrest those people?

Hmmmm...I would kind of straddle the middle here.

Of course, we have the right to free speech. On the other hand, references to "bombs," "hijacking," "guns," etc. are obviously something that the airline needs to take seriously.

(In fact, they did this long before the TSA existed. When I first enlisted in the Army, I was put in charge of our small group to put us on a plane to Ft. Leonard Wood, MO, to begin our four wonderful years of service -- for which I was rewarded with a four-year career, veteran status, PTSD and SAT.

As ordered, I read the instructions to my group which included the admonition to avoid using words like "gun," "bomb," "hijack," etc.

So, of course, as we checking our luggage, one of the group said outloud, "Gun, hijack, weapon, bomb..."

The girl who was checking our baggage, thankfully, decided to ignore him rather than call the cops on all of us.)

On the other hand, "Bend over and spread 'em," is nothing that could reasonable (or even unreasonably) be interpreted as any intent to commit a terrorist act.

So, if the TSA got bent out of shape about that, he should have just said, "Suck it up, bitch. This is the U.S. of A., and we have freedom of speech. And if you don't like it, you can haul your fat ass to Cuba."

The supposedly new threat is going to be surgically implanted bombs. It's a bullshit idea that will generally fail. There was an attack where the bomber had the IED in his anus that was pretty much a failure.

The human body is generally pretty dense. Everyone has seen the soldier jump on the grenade to save everyone else. Same thing with an implanted bomb. It would have to be powerful enough to destroy the bomber's tissue and then extend significantly around him. Add in that there would really be no hard shrapnel unless they plant significant amounts of metal around the bomb. And again that would embed in the bomber's tissue on the way to external impact.

So I'm going to call bullshit on it now.

Many, many years ago, before TSA, I went to see a friend off at the airport. When I went through the metal detector, as a joke, I did a high-pitched "Whoop whoop" (which sounds nothing like a metal detector going off). Immediately, airport security asked me to step aside. From their attitude, I knew I had just done something stupid. They waved the hand scanner over me. The whole time, not once did they mention what I did, lecture me or tell me to never do that again, but it was clear: I'm not supposed to do that at the airport. Since then, I have not felt the urge to joke about stuff like that. If I'm taking a flight, I want to make sure I get on that plane.

However, if I was a casual traveler, I'd probably be more likely to josh around with TSA a lot more.

Proetected by first amendment? Sure. Not actually illegal? Yup. But it has *always* been a *really* bad idea, even before the TSA. Bad ideas have consequences.

Thank you, Amy, I had thought about that, but I had forgotten to include it. (When my posts run long, I sometimes forget what I was going to say.)

On the other hand, if I were a terrorist and I thought that cracking jokes about being a terrorist would remove me from suspicion, then that's what I'd do.

As you point out, though, this is the TSA. Since when does it, or any branch of the government, for that matter, employ common sense?

Remember the free-speech zones, ostensibly created to protect the President from assassination attempts?

So, because you don't support the President, that makes you a reasonable candidate for an assassin?

If I was planning on blowing away the President, I would disguise myself as a supporter. As a matter of fact, two presidential assassins did present themselves as supporters.

Charles Giteau, lifelong loser who was successful in absolutely nothing he tried (except, as it would turn out, murdering a President), supported James A. Garfield, even delivering speeches and passing out leaflets. His benefit to Garfield was probably negligible, even non-existent, but that didn't stop him from believing that he was entitled to a reward for his services. After Garfield's election, Giteau joined the long line of job-seekers hoping for a lucrative position in the government. (Thanks to spoils system, a new President meant new jobs available in the government.)

When his position as Ambassador to Vienna wasn't forthcoming (or any position in the government, for that matter), he decided that Garfield needed to be put out of the way, so he could try again with Chester Arthur, Garfield's veep. So, he simply blew away the President, who had served only 100 days as President, making his the second shortest term in U.S. history (second only to W. H. Harrison, who served only one month before dying of pneumonia -- he had given a long, tedious inauguration speech on a bitter cold, rainy day without a winter coat or hat).

Chester Arthur, strangely enough, was even less amenable to hiring Giteau than was his predecessor, if you can believe that! And he refused to intervene when Giteau went to his execution.

But the point being is that Giteau had presented himself as a supporter...which in fact, he was...as much as a murderous lunatic can be said to be a supporter.

Leon Czolgosz (I'm probably spelling it wrong, but I'm too lazy to look it up) also managed to blow away President McKinley by joining the ranks of those eager to meet the second term president. McKinley was a gregarious palm-presser and absolutely loved meeting new people. When it came Czolgosz's turn, McKinley extended his hand, Czolgosz slapped it away, and a put a bullet right through McKinley.

The story of McKinley's death is actually quite touching. While he was a terrible President (he was the slave of public opinion), he should be remembered as a good man. He adored his wife and no President was ever a more devoted husband. Ida McKinley was epileptic and also suffered migraines. He rearranged the seating of the White House table so that he could be seated next to her, in case she had a seizure. He would often temporarily abandon affairs of state to attend to her needs. Even as he was dying, he sang his favorite hymn to her. He also gave gracious thanks to the physicians who struggled valiantly to save him. He reached out for a hand to hold. A doctor took it, and McKinley was no more.

Leon Czolgosz went to the electric chair calmly, declaring it was his duty to kill the President and that he was not sorry for his crime.

As the saying goes: you can beat the rap, but you can't beat the ride.

People say stupid things.

The TSA should not be charging people for saying stupid things.

The Press (and the people) should lay the buck where it properly belongs, at President Obama's desk. These sorts of stupid bogus Federal arrests should be brought up at press conferences and Obama forced to issue his weaseling statement of support.

Just as a minor little comment: yelling "Fire" in a crowded theater is not illegal. It may be rude, and the theater owner may well ban you from the premises, but it is not illegal. Google it, if you don't believe me.

In this sense, there is nothing even remotely illegal about yelling "bomb" in an airport. The same rules apply: it is rude, you will piss off a lot of people, but it should not get you arrested.

Of course, it will. Our lords and masters are not bound by little details like laws - they will invent some other charge to nail you with.

Oh, look it up yourself, you dufus. In the Schenck v. United States decision, Supreme Court Justice Oliver Wendell Holmes wrote in the opinion of the court, "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."

But don't take my word for it. Feel free to try it. We'll visit you in prison.

It doesn't help that CT media and powers have a paranoid, politically correct Chicken Little mindset. They greet blizzards as a sign of the rapture. A local professional hockey coach violated drunk driving parole by driving and it was a front page Investigative Report - they followed him to his home and took photos.

Patrick, goddamn that's irritating. You didn't even bother, did you, just had to come out with the ad hominem.

1917, Schenk, Holmes uses this famous little phrase as an example while trying to explain a ruling about something completely different. While he obviously believes it would be illegal, it is not any sort of legal ruling, just an off-the-cuff example.

Even so, the ruling that Holmes was explaining occurred during World War One; a time when any sort of anti-patriotic speech was stomped on, even by the courts. This very case was overturned by a later ruling, Brandenburg v. Ohio, in 1969.

So, no, shouting fire in a crowded movie theater is not illegal.

We are not going to take back our rights by simply applying enough snark.
I never thought I'd see our citizens rise up against the government in my lifetime, nor did I imagine that I would be on their side if they did. The odds that I will see it are rising fast. We live in interesting times.

This fellow should note that remaining silent indicates approval of TSA procedure, by accepting it as a price of passage.

Though apparently we are not to think that on a blog.

That "fire" argument may be the stupidest meme on the Web. It ranks right up there with "everybody once thought the Earth was flat". (No.)

Proetected by first amendment? Sure. Not actually illegal? Yup. But it has *always* been a *really* bad idea, even before the TSA. Bad ideas have consequences.

Posted by: Elle

Then by all means do nothing, do nothing to the point that one day it is made illegal and the venue in which you can not say certin things is moved elsewehere

No, a_random_guy, you're what's irritating.

First, Oliver Wendell Holmes didn't use the phrase as an example; he originated it.

Second of all, it's dicta. It may not be binding precedent, but it's still important.

You don't know what you're talking about, so kindly shut it.

I visited your link. One of the first things I've noticed is that your source is not a lawyer. (Quelle surprise.)

And he has no idea what dicta means. Dicta is still relevant, contrary to what he seems to be implying. It is still authoritative. It just isn't binding.

Regardless of the unfortunate decision, that does not suddenly invalidate everything in it. As a matter of fact, the irrelevance to the decision is what saves it. Had Holmes been making this comment in an overturned decision that was completely related to the decision, you might have an argument for throwing it out.

As a matter of fact, the Schenck decision is still considered relevant for freedom of speech challenges.

And contrary to what your idiot source plainly stated, Holmes did not write the "decision" of Abrams v. United States. That decision was written by Justice John Hessin Clarke. Justice Holmes wrote the dissenting opinion, which can produce neither case law, nor dicta.

It is your source that didn't bother to look anything up. He has no idea what dicta means, and he thinks Holmes wrote the opinion of the Court in the Abrams v. United States case.

Speaking of cases, if you want to get on someone's case for not looking things up, why don't you send an email to the moron you cited? If he was any more full of it, he'd explode.

The "yelling fire in a crowded theatre" example is an example of free speech. It is not against the law to exercise free speech, and as in the Pentagon Paper case, it is in a "Prior restraint" context the example applies best to. However, the consequences of your exercising free speech can be against criminal law or civil law (libeling someone). This isn't the case here though.

It takes intelligence and verbal skill to make sure you don't get arrested but still get your point across each and every time you have to deal with the TSA, or any branch of the idiocracy, while in the act of eroding/ignoring our constitutionally protected natural rights.

Don't forget that "prior restraint" is the tool used to restrict the right to arms and their use, but it seems that is OK to prior restrain the 2nd but not the 1st.

"Then by all means do nothing, do nothing to the point that one day it is made illegal and the venue in which you can not say certin things is moved elsewehere"

Look, I have no objections to a *myriad* of things to say to a TSA agent. Stand there and recite the fourth amendment in arabic, I'll cheer for you. Strip down to your birthday suit and walk through security naked as a jaybird and more power to you. Call the goon giving you a pat down a worthless cunt-rat and ask him which highschool he failed out of, that sounds downright hysterical.

But saying the words "bomb" or "hijack" in an airport has always been a bad idea. I've never been one to say people should go meekly through security. I actively try to do my part to make TSA agents loathe coming into work on the rare times I've flown in the past five years. But I still question the sense of saying the word "bomb" in an airport and being surprised when people react to that.

@Patrick: I gave that link, because it is readable by a lay person. You want a link from a lawyer, one who knows his way around the first amendment, so here it is. It's a lot more complex, nuanced and difficult to read. Nonetheless, the takeaway is the same.

For those who lack an in depth knowlege of criminal law and how it works.

The TSA is conducting an administrative search, not a criminal search.

Nothing in the Constitution protects you from being detained, being questioned, or being arrested.

The Constitution and your rights only come into play when they charge you with a crime, and prosecute you.

At that point you get to make the argument that your constitutional rights were violated.

So, Isab: be clear. Do you approve of the apparent practice of detaining, questioning and/or arresting people, and for what?

a_random_guy, thank you. I'll check it out.

Isab, you are in terrible danger. 'Waste just asked you your opinion on something. If you do not give it, both he and lujlp will take that as their right to infer the very worst things about you. In luj's case, he will even go so far as to call you a pedophile, or at the very least, someone who advocates "fingerbanging babies." (That's a direct quote from luj.)

You see, they believe they are entitled to know your opinion if they ask for it. And if you do not give it, they believe they have every right to decide for you, and promote this as your opinion.

You've been warned.

Raddy, I doubt that Isab supports any of that... she's just pointing out what the existing law and precedent is.

IMO, though, that entire "administrative search" thing is a massive end-run around the Constitution. It makes the Fourth Amendment a dead letter, and it's been in place for a lot longer than most people realize. When OSHA comes to inspect your factory and write you up because your stair rails aren't the way they want them this week, that's an administrative search. If the Fourth Amendment were still established, then you as the factory owner could greet OSHA at the door and say, "Got a warrant? If not, fuck off." But the massive regulatory state finds it inconvnient and tiresome to be running off to get warrants all the time. Voila, administrative search! Basically any property in the U.S. can be searched at any time for any reason, no warrant necessary. Private residences are the only exceptions, and I expect that won't last much longer. There are already lots of groups advocating that private residences should be subject to periodic inspection, for "public health" reasons.

@Cousin Dave,

You are correct, I dont support any of it, but constitutional rights have always been geared towards protections against criminal charges rather than administrative and safety inspections.

The Supreme Court has ruled on these issues many times, and always sided with the government.

While in principle I think we could do with a lot fewer government regulations, and still have reasonable health and safety standards. .

I dont want county officials to have to get a warrant to test restaurant workers for hepatitis (or ebola) if there has been a suspected outbreak traced back to a restaurant.

Nor do I want them to have to get a warrant to insure that you are not keeping twelve year old Chinese girls chained up in your garment factory, and forcing them to turn tricks on the side.

Look at that Pat, Isab was capable of answering a simple yes no question. Why arent you?

I dont want county officials to have to get a warrant to test restaurant workers for hepatitis (or ebola) if there has been a suspected outbreak traced back to a restaurant.

I do, and if they traced it back to one resturant getting a warrant should only take a five minute phone call

"Nor do I want them to have to get a warrant to insure that you are not keeping twelve year old Chinese girls chained up in your garment factory, and forcing them to turn tricks on the side."

The ironic thing is, I think that's one case where they would have to get a warrant. It's an allegation of criminal behavior. Whereas OSHA can simply walk in and hit you with a six-figure fine because they don't like the particular shade of red that a switch guard is painted. If you're a manufacturer, OSHA and the EPA can hurt you far, far worse than most criminal charges can, and in the regulatory bizarro world, there is no due process. This will all be coming to our residences soon -- all the power-grabbers have to do is get one court to agree with them, one time, and then the precedent is set.

a_random_guy, this second link you posted is not difficult to understand at all. However, it is not saying the same thing as your first website did. Not at all.

He is not saying, for instance, that yelling "Fire!" in a crowded theatre isn't illegal.

Quite the contrary, from this second source:

People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes' fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. [emphasis added]

He is merely saying that yelling "Fire!" in a crowded theatre, as an example, is overused, and probably not appropriate with the speech you're criticizing.

And of course, he's right. Not all speech is protected speech. Slander is not protected. If you place the life or livelihood in danger with false statements, you are not protected by the First Amendment.

From the article:

If you have a pertinent case showing that particular speech falls outside the First Amendment, you don't have to rely on a 90-year-old rhetorical flourish to support your argument.

At no point does he claim that it is not illegal to yell "Fire!" in a crowded theater! His plain objection is using this as -- as he calls it -- "the most famous and pervasive lazy cheat in American dialogue about free speech."

The essay is about using the "yelling 'Fire!'" argument as a response to any speech that might fall outside the protection of the First Amendment.

For example, if you have an argument against slander, make it. Yelling "Fire!" is not slander, and has nothing to do with slander. (Although slander is a pretty difficult legal hurdle. You have to prove 1) that the slanderer is lying; 2) that he knew he was lying; and 3) that the slander cost you in some way.)

Don't just resort to "Yelling 'Fire!'" when you're attacking slanderous statements.

Now, let's look at the first article you linked. In fairness to this consummate dullard, he didn't try to say that yelling "Fire!" in a crowded theater is not illegal.

The title of the article is "Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'"

Obviously, from this title, he is not trying to say that it's okay to yell "Fire!" in a crowded theatre. (I was a theatre major in college, and I use the old spelling of "theatre.") He saying that you shouldn't use that as an argument for any and all censorship.

Now the problem I have with this article is that he has his facts wrong.

First, he has no idea what is meant by "dicta."

From the article:

The case had nothing to do with fires or theaters. The quote was Holmes giving a general statement that has no actual bearing on the case or precedential value in court ("dicta" in the legalgeek speak).

From this, you might walk away thinking that dicta is no big deal. Actually, it is a big deal. It's considered authoritative, but it is not binding. Dicta is very useful in making legal decisions. Loving v Virginia states that we all have a right to marry. That statement is also dicta, because it has no direct bearing on the case before them, which was for the Lovings to have their interracial marriage recognized in Virginia. Still think it's not important?

From the article:

The case is, to this day, considered one of the more odious and regretful decisions by the Supreme Court, in which they locked up a member of the Socialist Party for distributing incredibly tame pamphlets to give to prospective draftees about their rights during World War I.

This statement is actually accurate. I give the author credit, which is something he deserves very little of.

From the article:

The case was later effectively (though not explicitly) overturned by Brandenburg v. Ohio and the ruling in the case itself is no longer binding caselaw anyway.

True, but somewhat misleading. Schenck v United States is still cited for its dicta on free speech challenges.

I do give him credit for pointing out that the Schenck case was not overturned. What I object to is his suggestion that the dicta of the case is no longer relevant because the major point of this ruling was essentially overturned.

To put it in cliche terms, don't throw the baby out with the bathwater. Which is probably not quite appropriate. It's more like "throw out the baby and the bathwater, but there's still a useful, small piece of soap in there somewhere."

From the article:

Holmes himself, very soon after this decision, issued another decision that argued quite differently in Abrams v. United States, where he made the much more reasonable and useful argument:

"The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."

Unsinn! Idiocy!

That is not a decision. It is the dissenting opinion. Although the case is correct, as is the author. A dissenting opinion carries no judicial weight, and can create neither case law, nor dicta.

It can, however, be cited in future court rulings as "influential." For instance, a dissenting opinion in the appalling Dred Scott v Sandford was cited in another famous SCOTUS ruling, United States v Wong Kim Ark.

But until such time as it is actually cited in a court ruling, a dissenting opinion's value is merely for posterity.

Loving v Virginia states that we all have a right to marry. That statement is also dicta, because it has no direct bearing on the case before them, which was for the Lovings to have their interracial marriage recognized in Virginia. Still think it's not important?

@ Patrick

This is incorrect.
Loving v. Virginia was about the state of Virginia criminalizing interracial marriage, and prosecuting the Lovings for it.

It was one of those set up test cases, like Roe v. Wade.

It was not about "recognizing" interracial marriage. Racial discrimination gets strict scrutiny. Not only does the dicta in Loving not establish any constitutional right or precedence for same sex marriage; The decision itself does not establish any constitutional right to marry.

Here's a hint. Any discrimination that does not demand strict scrutiny, of a suspect class, can have a lot of time, place, manner restrictions on it without violating anyone's rights.

Neither of the cases heard recently by the Supreme Court on the subject of same sex marriage established any sort of a constitutional right to marry.

When you try and use dicta to establish new rights, or overturn established precedent, it is considered a form of bootstrapping.

The only use for dicta, is for navel gazing law review articles trying to get into the mind, and motives of the justice who wrote the opinion.