🔥FIRE-IN-A-CROWDED-THEATER🔥 In Bailey v. Iles, a Louisiana district court cited Schenck.

[mahatmakanejeeves]

Last edited Tue Feb 21, 2023, 11:23 AM - Edit history (1)

{Edited to add the tweet, which of course I had forgotten to do}

The First Amendment Retweeted

🔥FIRE-IN-A-CROWDED-THEATER🔥

In Bailey v. Iles, a Louisiana district court held that making a zombie joke on Facebook isn’t protected by the #FirstAmendment (calling it “COVID misinfo”).

The court cited Schenck.

@IJ
(
@benjaminafield
) has appealed:

https://ij.org/case/bailey-v-iles/

Oh no twitter.com/MGsquared/stat…

Link to tweet

[Fiendish Thingy]

1. "Shouting fire in a crowded theatre" is a misunderstood myth

https://www.theatlantic.com/ideas/archive/2022/01/shouting-fire-crowded-theater-speech-regulation/621151/

https://www.whalenlawoffice.com/blog/legal-mythbusting-series-yelling-fire-in-a-crowded-theater/

https://reason.com/2022/10/27/yes-you-can-yell-fire-in-a-crowded-theater/

However, Alito is simply wrong that "shouting 'fire' in a crowded theater" is unprotected speech. The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.

https://abovethelaw.com/2021/10/why-falsely-claiming-its-illegal-to-shout-fire-in-a-crowded-theater-distorts-any-conversation-about-online-speech/

It keeps coming up, the all-too-common, and all-too-erroneous, trope that “you can’t shout fire in a crowded theater.” And it shouldn’t, because, as a statement of law, it is completely wrong. It’s wrong like saying it’s legal to rob a bank. Or, perhaps more aptly, it’s wrong like saying it’s illegal to wear white after Labor Day. Of course such a thing is not illegal. It’s a completely made-up rule and not in any way a reflection of what the law on expression actually is, or ever was. And it’s not without consequence that so many people nevertheless mistakenly believe it to be the law, and in so thinking use this misapprehension as a basis to ignore, or even undermine, the otherwise robust protection for speech the First Amendment is supposed to afford.

If the government didn’t exercise prior restraint on Bailey’s speech, I don’t know why the first amendment even entered the conversation.