That’s quoted from Colorado public defender Eric Vanatta’s legal brief defending a high school student who was charged with disorderly conduct for swearing at the principal (via Calpundit). Despite the fact that five months remain in the year, The Smoking Gun has given this brief the 2003 legal document of the year award. Go ahead and read the whole brief – it’s a very rewarding and somewhat silly examination of the F-word.
That said, I do have a quibble with the passage quoted above. Like so many people, Mr. Vanatta gets the cliche wrong: it’s perfectly legal to yell “Fire!” in a crowded theatre. What’s illegal is falsely yelling “Fire!” in a crowded theatre (Justice Holmes’ exact quote is, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”). The distinction is, as Mr. Vanatta says, constitutionally significant.
Incidentally, Schenck – the case the “falsely yelling fire in a theatre” quote comes from – is one of the most appalling attacks on free speech in Supreme Court history, in which the Court turned logic on its head to argue that arresting people for peacefully distributing anti-war pamphlets did not violate the first amendment. It’s ironic, and annoying, that the Supreme Court case most often quoted in defense of free speech was actually defending the opposite principle..
So are you saying it’s OK to yell “F–k” in a crowded theater as long as there actually are people f–king there?
Tom T. makes a good point. My sister was at a girls’ boarding school in England, and when they drove through the countryside they liked to shout “Rape!” because that’s that bright yellow plant you see fields of over there.
Is falsely yelling “Fire!” in a crowded theatre something like falsely yelling “Wolf!” when there is no wolf?
Not really, beacause in decades past, it was common for people to be seriously injured – even killed – in theatre fires, not because of the fire itself, but because they were trampled to death in the panic as the crowd attempted to leave. So falsely yelling “fire” presents a clear and immediate danger in a way that I don’t think falsely yelling “wolf!” does.
Amp, that “wolf” bit was my attempt at a subtle dig at GWB and what I see as the current manipulation of terror to instil fear in voting Americans: “We don’t want our smoking gun to be a mushroom cloud”, etc.
I kept it subtle because it was kind of pointless and gratuitous, really. But far be it from me to resist a cheap shot. :D
Whooshe! Zing!
That’s the sound of your “wolf” joke zooming entirely over my head, John. Sorry ’bout that, and thanks for the clarification. :p
If a joke falls in the forest and nobody gets it…
…does it raise a laugh?
Not only does Vanatta get the fire-in-a-crowded-theatre decision wrong by omitting the “falsely”, I’m not sure he can document the use of “Holy f-ck, Batman!” And doesn’t he mean “The Warren Court” rather than “The Cohen Court”? What a f-cked-up brief. But hilarious: I must show it to my attorney friend, who’s the sort of guy who’d say “I wish I were a f-cking f
Many of Vanatta’s examples seemed to me to bear a strong resemblance to passages in _English as a Second F*cking Language_ (asterisk original; I’m not just being polite), by Sterling Johnson. Copyright violation, anyone?
I’m also reminded of Timothy Boomer’s conviction in about 1999 (later overturned) for cursing when he fell out of his canoe on a river, within earshot of a family with children and a sheriff with not enough real work to do.
So WTF can we shout, without being charged or sued?
“later overturned” —
I mean the conviction, as well as the canoe.