Blowing Smoke
Mark Steyn
The Corner
One of our Powerline pals, John Hinderaker, sends a note re Oliver Wendell Holmes:
<<< Even among American constitutional law scholars, the "fire in a crowded theater" analogy is generally understood to be dumb. I took Constitutional Law from Paul Freund, one of the great scholars in the field—among other things, he was the guy who worked with John and Bobby Kennedy to lay the constitutional foundation for the Civil Rights Act. Anyway, he pointed out in class that yelling "fire" in a theater is exactly the same as pulling the fire alarm. It isn't really "speech" for First Amendment purposes at all, any more than pulling a fire alarm is "speech." Or, to take another example that I came up with, if a mobster says "Shoot him, Bugsy," and Bugsy shoots him, and the mobster is prosecuted for murder, he doesn't have a First Amendment defense.
The First Amendment is intended to protect debate and discussion about issues of public concern—e.g., your books—not the giving of orders or false fire alarms. Not nude dancing either, by the way, but that's one of many the Court got wrong. >>>
The censorship crowd really need to come up with a new cliche. The only other scholarly/historical reference to come up at my testimony in Ontario was the old "No Irish Need Apply" canard, used by a socialist member to justify "hate" laws. "No Irish Need Apply" was a big 19th century pop song that's somehow been mistaken for a social phenomenon. It's as if, at congressional hearings circa 2109, "Monster Mash" were to be solemnly cited as evidence of vampiric partying in the late 20th century.
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