At 9:29 AM -0800 11/10/04, Guy Smith wrote:
> I've always found the "can't yell fire in a crowded theater" argument to
>be a false one, and invalid on most fronts.
Not the least of which, I believe, is that the "yelling fire in a crowded
theatre" ruling was later disavowed by its author and overturned as bad
precedent by the court. (In fact, the original court decision would be
recognized as an infringement of civil liberties by most average citizens
today, even as it was then.)
The following is an excerpt from a Vin Suprynowicz column:
Justice Holmes was writing for the court in Schenck vs. the United States,
when in 1919 he penned the now infamous doctrine: "The most stringent
protection of free speech would not protect a man in falsely shouting fire
in a theater and causing a panic. ... The question in every case is whether
the words are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent."
And what was this "clear and present danger"? Why, Mr. Justice Holmes was
upholding the imprisonment of Charles Schenck, general secretary of the
Philadelphia Socialist Party, for publishing 15,000 pamphlets which
protested U.S. involvement in the First World War, and urged young men to
resist the draft.
The current textbook "Mass Media Law," by Don Pember of the University of
Washington informs us: "Sedition prosecutions in the period of 1915-1925
were the most vicious in the nation's history as war protestors,
socialists, anarchists, and other political dissidents became the target of
government repression."
This is the proud tradition which our brethren of the left embrace when
they parrot back Justice Holmes' words to us as evidence that "no right" -
they really mean only the despised Second Amendment, of course - "is
absolute."
Unfortunately for this argument, Professor Pember further instructs us:
"To many American liberals this notion seemed far-fetched and Holmes was
publicly criticized for the ruling. ... Holmes changed his mind about his
test ("clear and present danger") in less than six months and broke with
the majority of the High Court to outline a somewhat more liberal
definition of freedom of expression in ... Abrams vs. U.S. (1919.)"
By 1957, the high court found in the Yates case that to sustain a
conviction under the Sedition acts the government must prove the defendants
advocate specific violent and forcible overthrow of the government. And by
1969 the court went so far as to hold that even advocacy of unlawful
conduct is protected by the First Amendment, "unless it is directed toward
inciting or producing imminent lawless action and is likely to incite or
produce such action."
"The government found it impossible to do this in the 1950s," Professor
Pember concludes in his 1977 text, "and the Smith Act has not been invoked
to punish an act of expression in more than 25 years."
So Justice Holmes admitted he was wrong within six months, and the high
court has since so eviscerated the Sedition Acts that no one even tires to
enforce them anymore (Thank heavens.)
Shame on those who embrace these red-baiting words, written in service of
mass conscription for the tyrant Wilson's Great War. The Socialists were
never right about much, but I believe they had every right to publish their
darned anti-war pamphlets. Don't you?
--
Escape the Rat Race for Peace, Quiet, and Miles of Desert Beauty
Take a Sanity Break at The Bunkhouse at Liberty Haven Ranch
http://libertyhavenranch.com
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