The always unspoken, and generally unknown and unacknowledged major premise to this "you can't yell 'fire' in a crowded theater" meme is this:
You are not "free" to yell "fire" in a crowded theater if in fact there is no fire in the crowded theater.
Another way of stating this so-called exception to freedom of speech: If there is no fire in a crowded theater and you sing out 'Fire, fire fire, raging all about; here come the firemen to put the fire out; great big ladder, long long hose, ...these are the firemen who'll put the fire out" (or something like that, from a 1949 Young People's Record Club ditty), then you can be held liable for all sorts of things, like causing a riot, being the proximate cause of people being trampled to death in their panic, etc.
However, what if the theater actually IS on fire? Generally, citizens and law enforcement folks do NOT have an affirmative duty to keep any particular member of We the People safe from harm. In at least one case, where the victim was in fear for her life, the police told her they could not protect her, and told her to "get a gun" and learn to use it. She did not follow this advice, and her stalking ex grievously wounded her (he was more successful in killing himself). But the "authorities" can punish the utterance of falsehoods in a dangerous situation. And do.
It should be pointed out that these "Police have no affirmative duty to protect a specific individual" cases are all about money; survivors and/or victims of this lack of protection are suing for damages in civil court
It then ceases to be a "freedom of speech" issue, but a "truth" issue, seems to me. We deal with defamation (slander & libel) similarly. If the speech or publication is harmful but true, plaintiff loses. And if the speech or publication is about a rich, famous or otherwise notable soul, the standard is only that a "reasonable reporter's attempt under hysterical deadline conditions" to ascertain the truth was made.
The problem is that our government and every person in it now seems to think it has the upper hand, greater power, in all situations, than the theoretically all-powerful We the People, who delegated only some some of their/our omnipotence to a Constitutional Republic.
I wonder how Ms. "We Broadly Endorse Freedom of Speech For the People, But Not For Mere Persons" would handle it if the reporter took out his/her pocket Constitution and read her the First Amendment. And asked her to repeat, for the press there assembled, her federal oath of office.
Then ask the question, "Do you find the words 'broadly endorse' in the First Amendment to the Constitution?"
And what do you mean by "do the right thing"? Does this include lying, under oath, to Congress, as our National Surveillance Agency and our current "Unitary Liar-In-Chief" (aka "President"
have recently done? Or do you really mean, "Say what we want you to say, because we're the pre-eminent bad-ass on the planet"?
Here's a just-for-fun-factoid: Count the number of years this peace-loving country of ours has been at peace. In the 216 years since 1789, our peace-loving, democracy-exporting government has been at war of one sort or another for 201 of those 216 years: 15 years of "peace," 201 years of war. Or about 7% peaceable and 93% bellicose war monger.
This is not the record of a peaceful nation, though our "leaders" always try to sneak this lie past us from the propaganda platforms We the People have paid to build and opulently repair, in most of the text-books we pay to have our children read and "learn," pay teachers to "teach," and so on.
Our elected officials, in particular, seem to have invariably had a complete aversion to people speaking what was on their minds if it was critical of their own or of campaign contributors' actions. They suppose themselves to be in some kind of charmed world "where seldom is heard/a discouraging word." President #2, John Adams, was so offended by unkind comments on his rotundity, judgement, bellicosity in the press of the day that he got passed, and signed, the Sedition Act, under which several editors were thrown into prison (one died there, but supposedly of natural causes).
The Supremes of that time tried to sustain the patent, "facial" unconstitutionality of that law under the specious logic (or lie) that the framers had intended to distinguish "prior restraint" of speech vs. punishment after the "free utterance" of speech.
Prior restraint of speech, following English Common law, would be unconstitutional, they said, but punishment after the fact would not be. My view, and that of others, is this: While the Supremes' decision might be used as fertilizer to enrich their fields, as the manure of any animal generally does, it certainly did Adams and the judiciary little good, as President #3, Jefferson, pardoned all of the publishers and set them free. And the decision is generally excoriated by those then living and their posterity.
It should be added (so I will) that Adams, in seeking to silence critics of the then-current war, was worried that a newborn nation would not be strong enough to both fight the enemy abroad and enlist the assent of We the People at home, particularly not strong enough to do all that and repay the national debt, owed to those rich folks of Adams' money/power class.
As we all know, there is a great deal of money to be made by going to war (how do you repair/recycle an eight-inch naval shell that blows up when it hits a target?), but only if the governments which invariably have to borrow it actually pay their "debts" to the profiteers. With uncoöperating We the People's money. Repaying this "national debt" was the first or nearly the first, legislative matter taken up by the 1st Congress, under the rubric "Money talks; soldiers walk (into bankruptcy)." Not much has changed in two centuries.
Final note: Unless we are willing to insist on recovering the enumerated and un-enumerated rights and powers We the People set out in the Bill of Rights, stripped away by our"elected" (so-called) "representatives" (so-called) on the grounds that "9/11 changed everything," they will be lost forever.
If you're a Verizon customer, for example (as am I), what do you do if you want to stay in touch with family members, want to express any opinion via email, tweets, snail-mail, over cellular or "conventional" phone lines that you know is currently not popular with the ruling class? Remember Ari Fleischer telling Bill Maher that Maher had "better be careful what you say." (The current government propaganda had found that "coward" was particularly effective in raising vengeful bile amongst the citizens (that is, it "played well in focus groups" , so the government called the so-called "hijackers"--never proven, of course--"cowards" and labeled their supposed "acts" as "cowardly." Maher took exception, saying essentially that "whatever adjective you wish to tag them with, "cowardly" is probably not le mot juste, or the apposite word. This Fleischer caution, coming from an Israeli citizen (Fleischer) to a Jewish atheist, was noted as a quite remarkable warning or threat at the time. And Maher subsequently did lose his comedy show for a time, as I recall.
I well recall that my signature on a petition in 1968 (that freedom to assemble and petition the gov't for redress of grievances thing) cost me six months' loss of GI education benefits--this was a Vietnam Veterans Against the War petition asking for the withdrawal of US troops from Vietnam. The current government claimed that it was nearly impossible to withdraw from S. Vietnam. A Vermont Republican senator, George Aiken, disagreed, saying that "all we have to do is declare victory and leave." As I recall, a Texas rep. said much the same thing about Iraq: When we invaded Iraq, we just marched in. We can just march out the way we came in.
The main problem the government had with the VVAW was, I think, that it was really difficult to find a way to calumniate, slander, neutralize the VVAW message, as these citizens had not burned their draft cards, fled to Canada, but had actually served in the war, keeping America safe for--as that crazy Marine general, Smedly Butler, put it--United Fruit, Bank of America, and other plutocrats, fascisti, and Wall Street banksters, and lived to tell about the waste, fraud, abuse, lies, etc.
And none of these VVAW testimonials endorsed the product the White House/legislative/military/industrial/espionage complex was trying to sell at the time. (Read Butler's War Is A Racket for further elucidation.)
It turns out that lies (like the "Gulf of Tonkin 'Incident'," , bald-faced lies and body counts actually do work, at least for a time. The lies about the Kennedy assassinations have survived to this day (but MLK Jr.'s assassination was solved in the case of King Survivors vs. Lloyd Jowers, op cit.). We should all hope, and help, to see the lies about 9/11 uncovered in our lifetimes.
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