Question for legal experts about free speech

[diva77]

Update: Thanks to DUers Kaleva (#3, #21) & sir pball (#16, #17) in this thread, I need to correct my initial statement which was:

I understand that free speech excludes the right to yell "fire" in a movie theatre if there is no fire.

Why doesn't it exclude the right to yell "there's no fire here" when there clearly is one -- case in point:

DeSantis declaring that the Covid-19 booster makes you more likely to get infected.

Seems to me it should be illegal especially for a government official to make such a dangerously false statement.

So...any legal experts here to weigh in?

Here is the case that they referred to: https://supreme.justia.com/cases/federal/us/395/444/

Many thanks for setting me straight on this issue.

[Shermann]

1. I'm not a lawyer - but I did stay at a Holiday Inn Express

Yelling "fire" in a movie theater causes a panic. Inciting a riot causes...well...a riot. These actions can rise to the level of being criminal.

DeSantis tricked people into making poor life decisions. So, it may not get there.

[diva77]

2. In a way DeSantis is inciting a public health disaster

...seems as serious as inciting a riot.

Thanks for your answer -- it gave me a lot to think about!

[Shermann]

8. It's generally not a crime to hold false beliefs or to convince others of those false beliefs

You'd have to prove "willful ignorance" to get to a criminal act, which is tough.

[inthewind21]

25. My guess

It ranks right up there with Jenny McCarthy broadcasting that childhood immunizations caused Autism. Would that also be illegal? Clearly not.

[Kaleva]

3. Actually you do have the right to yell "fire" in a theater when there is no fire

Brandenburg v. Ohio settled that

[marybourg]

4. And not be prosecuted for it when

someone dies and you knew there was no fire?

[Kaleva]

6. Free speech

You might suffer civil penalties for the results but yelling fire in a theater is protected speech

[diva77]

13. I got confused reading that opinion

It seems the original decision was that you don't have the right to yell "fire," and an appeals court agreed, but then it was overturned by the Supreme court? (I got lost in the appeals and overturning history of the decision) -- any clarification much appreciated! Thanks...

[sl8]

16. No decision determined that you couldn't (falsely) yell fire in a theater.

It was dicta (a non-binding comment), written by J Oliver Wendell Holmes, Jr., in a case before the Supreme Court, Schenck v United_States.

https://en.m.wikipedia.org/wiki/Schenck_v._United_States

[sir pball]

17. Per Brandenburg you have an essentialy absolute right to speech unless...

…your speech is "directed to inciting or producing imminent lawless action, and is likely to incite or produce such action".

That's the current bar for speech to be regulated in America, and it's higher than the 8 foot 1/4 inch high jump record bar that sits over the entry gate to the Olympic museum in Lausanne (it's REALLY high).

[Kaleva]

21. Yes

I wonder why people keep saying one cannot yell fire in a crowded theater as an example of limits on free speech.

You should post an OP debunking that.

[diva77]

27. I just changed the OP to include the correction. Thanks for educating me!

[Tomconroy]

5. If giving out false information about covid was a crime

A lot of people would be in trouble

[Kaleva]

7. It'd apply to a number here at DU

Where people said this was no worse then the flu, that masks didn't work and so on.

[Dr. Strange]

9. Hell, even Fauci said masks weren't needed.

The problem/issue is that it's always easy to say retrospectively that you said what you said based on incomplete facts. So it becomes difficult to prosecute people for lying about something that doesn't involve complete and total objective facts.

[MichMan]

18. We were also told that getting the vaccine would prevent you from getting Covid

Clearly that wasn't true

[Kaleva]

19. I thought it was well understood that vaccines reduced the chances of getting COVID-19

[MichMan]

20. Reduced doesn't mean can't get it.

[Kaleva]

22. I know that

Like the use of condoms does not eliminate the chance of getting AIDs. It just reduces it. Or wearing a seat belt reduces the chances of being killed in a car accident

Edit: ,I haven't seen any posts where it was claimed that vaccines will prevent someone from getting COVID-19 but you have and that info is wrong.

[MichMan]

24. I'm not going to post who said it or a link

It was said in the summer of 2021 by a high ranking elected government official "You’re not going to get COVID if you have these vaccinations,"

[sl8]

28. Snopes:

Biden did say that, but in the same speech, he also said that you'd be less likely to get sick, go to the ICU, etc..

https://www.snopes.com/fact-check/biden-if-vaccinated-wont-get-covid/

[Kaleva]

29. That would be Biden who said it at a town hall meeting July 2021

All the other times he said one is less likely to get infected

That's entirely different then someone who repeatedly claims over a course of time that one won't get infected if they get vaccinated.

[inthewind21]

26. I understood

it would make you less likely to die from it. I was never under the impression that it would prevent anything.

[old as dirt]

10. "Shouting fire in a crowded theater" is a metaphor for...

...distributing leaflets in opposition to a military draft.

See Schenck v. United States (1919):

https://en.wikipedia.org/wiki/Schenck_v._United_States

[Kaleva]

12. Brandenburg v. Ohio largely overturned that ruling

[Elessar Zappa]

11. It's protected speech.

[GreenWave]

14. I support your right to yell theatre at a crowded fire.

And your right to ask Death Sentence about his white go go boots and was he in drag and forget to take them off?

[Kennah]

15. Inciting or producing imminent lawless action and is likely to incite or produce such action

That is the standard laid down in Brandenburg

https://www.law.cornell.edu/supremecourt/text/395/444

[48656c6c6f20]

23. I don't question free speech as a right

It used to work in America until apathy and corruption stopped keeping it in check. Anything without limits is probably a bad thing. But this is the shit hole we live in now. I fully expect yelling fire in a theatre will now be accepted free speech.