Name:   architect - Subject:   Clarification just for Phil Date:   2/4/2021 9:37:28 AM

A week or so ago I posted that I felt the carrying of loaded guns to events where there is an obvious reason to believe violence might result should be prohibited using the ''shouting fire in a crowded theater'' explanation for limiting a perceived constitutional right.

Well Phil certainly got riled up, as he often does, against such a suggestion and pointed out that the restriction to shouting fire in a theater had been repealed 50 years ago.  You are wrong Phil...there was never a shouting fire prohibition to be repealed.

The Supreme Court has never addressed shouting fire in a theater in any way.  It has never said shouting fire was speech that could be abridged nor has it said the opposite.  During WW 1 a fellow named Schenck (a Socialist by the way) was arrested for distributing leaflets opposing the military draft.  The case went to the supremes as ''The United States vs Schenck'' and in a questionable decision the court, which was considered very conservative at the time, ruled his action illegal saying that the leaflet distribution presented a ''clear and present danger'' to the nation.  Justice Oliver Wendell Holmes made the famous statement in defense of the ruling that ''The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theater.''  That comment is where the ''fire in a theater originated''.

In a 1969 ruling on ''Brandenburg vs Ohio'' the court overturnred the opinion in ''US vs Schenck'' and held that even inflammatory speech was protected speech, but included the caveat...''unless the speech is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.''  You know things like you or me shouting ''fire'' in a crowded theater or the president of the United States telling a riled up and angry crowd to march on the capitol and ''fight like hell'' to ''stop the steal'' etc etc etc blah blah blah.

Hope this clears it up for you Phil.  No need to thank me, I know what's in your heart before you even speak a word.