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Reply #13: Since the Schenck case did not involve a person arrested for yelling fire in a crowded theater, [View All]

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No Elephants Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jul-15-09 06:20 AM
Response to Reply #7
13. Since the Schenck case did not involve a person arrested for yelling fire in a crowded theater,
Edited on Wed Jul-15-09 06:38 AM by No Elephants
overruling of the Schenck case does not affect the validty of the example given by Justice Holmes, which has been repeated many times since. On the other hand, since the SCOTUS has never decided a case involving yelling fire in a crowded theater, the example is only an example and not the supreme law of the land.

Point is, just because something is speech, doesn't mean you are free to say it whenever you want, wherever you want, under any cirumstance you want and at any decibel level you want.

Same principle with religion. You may honestly believe with all your heart that God wants you to marry an 8 year old--or six of them--but that does not mean the Free Exercise clause protects you from getting arrested for statutory rape or bigamy.

Now, all that is a separate from whether arresting someone for "honking for peace" is a burden on freedom of speech that the SCOTUS would accept. And that may depend on whether people would also get arrested for honking to support the war(s), or honking to support a favorite sports team. And maybe also on whether the honking occurred at 3 am or 3 pm. And how close to a residential area it occurred, etc. In other words, is the restriction neutral and reasonable, or is it because of the particular message or arbitrary?

On the other hand, there was a specific agreement between the police and the ACLU on this issue.

Hard to say how the SCOTUS might come out either way on this, if this case ever gets there.
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