Full Version: Compelling Interest to ignore the Constitution?
Recently, Ward Connerly wrote a piece over at Frontpage, titled Beware of Elites Bearing Racial Theories. The entire piece is worth reading, but it is this excerpt that I'd like to focus on.
The excerpt above is offered as an example of the "compelling interest" notion at work, not as an opportunity to rehash the SCOTUS decisions on integration. I'd like to explore this concept of "compelling interest."
Here's another piece that explores the origin of the doctrine., and finally, here is a very, very informative piece from legal academia on the subject, a piece which includes this from a O'Connor opinion in Adarand v. Pena,:
and also this from Brennan's opinion in Sherbert
emphasis mine.
Note, as the academic article makes clear, "compelling interest" is one of the elements of strict scrutiny.
Okay, so with that background, for anybody who has stuck with me, I offer the following questions:
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
2) How can we easily identify and test "compelling interests"?
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
At the higher education level, the United States Supreme Court ruled on June 23, 2003 that racial and ethnic "diversity" was so compelling that the use of race by universities was constitutional, despite the equal protection clause of the 14th Amendment to the Constitution and notwithstanding the command of the 1964 Civil Rights Act against discrimination on the basis of race. Underlying the Court's decision in the Gratz and Grutter cases of 2003 was the view that "diversity" - the twin policy sister of "racial integration" - improved the quality of education for all concerned.
The excerpt above is offered as an example of the "compelling interest" notion at work, not as an opportunity to rehash the SCOTUS decisions on integration. I'd like to explore this concept of "compelling interest."
Here's another piece that explores the origin of the doctrine., and finally, here is a very, very informative piece from legal academia on the subject, a piece which includes this from a O'Connor opinion in Adarand v. Pena,:
[W]henever the government treats any person unequally
because of his or her race, that person has suffered an
injury that falls squarely within the language and spirit of
the Constitution’s guarantee of equal protection .... The
application of strict scrutiny ... determines whether a
compelling governmental interest justifies the infliction of
that injury.291
and also this from Brennan's opinion in Sherbert
We must next consider whether some compelling state interest
... justified the substantial infringement of appellant’s
First Amendment right. It is basic that no showing of a
rational relationship to some colorable state interest would
suffice; in this highly sensitive constitutional area,
“[o]nly the gravest abuses, endangering paramount interest,
give occasion for permissible limitation.”187
emphasis mine.
Note, as the academic article makes clear, "compelling interest" is one of the elements of strict scrutiny.
Okay, so with that background, for anybody who has stuck with me, I offer the following questions:
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
2) How can we easily identify and test "compelling interests"?
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
No, because it is not necessary, just as we do not need an amendment stating that libel is not protected as free speech, that human sacrifice is not protected as a form of religious expression, and so on. The plain fact is that the rights guaranteed by the Constituion are not, and cannot be, absolute, although they should be very, very strong indeed. This is why the concept of a "compelling interest" must exist. Otherwise, your only choices would be absolutely unrestricted speech of any kind, absolutely unrestricted religious expression of any kind, and so on; or restrictions on these behaviors at the whim of the government. The government must show a "compelling interest" -- an extraordinarily important reason -- to restrict Constitutional rights.
2) How can we easily identify and test "compelling interests"?
Well, we probably can't do it easily. That's why we need the best possible legal minds on the Supreme Court, and why we need strong advocates arguing both sides of the case. Determining what a "compelling interest" is in any particular situation is an extremely important decision, not to be made lightly. One question to ask might be "Is this particular restriction of a Constitutional right absolutely necessary in order to prevent the loss of the rights of others?"
For example, is consideration of the ethnicity of prospective college students as one factor in their admission, which would seem to be a violation of equal treatment, absolutely necessary in order to prevent even worse forms of unequal treatment? This is a profound question, and one not easily answered. This is why it is such a hot topic of debate.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
Pretty much. The exact nature of a "compelling interest" is not, and cannot be, set in stone for all time; but it can be determined for specific circumstances by those who are supposed to be the wisest among us.
No, because it is not necessary, just as we do not need an amendment stating that libel is not protected as free speech, that human sacrifice is not protected as a form of religious expression, and so on. The plain fact is that the rights guaranteed by the Constituion are not, and cannot be, absolute, although they should be very, very strong indeed. This is why the concept of a "compelling interest" must exist. Otherwise, your only choices would be absolutely unrestricted speech of any kind, absolutely unrestricted religious expression of any kind, and so on; or restrictions on these behaviors at the whim of the government. The government must show a "compelling interest" -- an extraordinarily important reason -- to restrict Constitutional rights.
2) How can we easily identify and test "compelling interests"?
Well, we probably can't do it easily. That's why we need the best possible legal minds on the Supreme Court, and why we need strong advocates arguing both sides of the case. Determining what a "compelling interest" is in any particular situation is an extremely important decision, not to be made lightly. One question to ask might be "Is this particular restriction of a Constitutional right absolutely necessary in order to prevent the loss of the rights of others?"
For example, is consideration of the ethnicity of prospective college students as one factor in their admission, which would seem to be a violation of equal treatment, absolutely necessary in order to prevent even worse forms of unequal treatment? This is a profound question, and one not easily answered. This is why it is such a hot topic of debate.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
Pretty much. The exact nature of a "compelling interest" is not, and cannot be, set in stone for all time; but it can be determined for specific circumstances by those who are supposed to be the wisest among us.
I clicked on this thread confident I was going to read something about Bush.
Paraphrasing Epstein and Walker's "Rights, Liberties, and Justice" 5th edition, the strict scrutiny or suspect class is used when the state discriminates on the basis of a criterion the Court has declared to be inherently suspect. As suspect classification is based on characteristics assumed to be irrational, race is a suspect class because it is inherently arbitrary. For a law to be valid under strict scrutiny it must be found to advance a compelling state interest by the least restrictive means available. The court presumes the state action is unconstitutional and the burden of proof is on the government to demonstrate that the law is constitutional. On the other hand SCOTUS has ruled that suspect class statutes should be accorded only to those groups that constitute discrete and insular minorities that have experienced a history of unequal treatment and a lack of political power. Ergo diversifying the student body without resorting to quotas is a valid state interest.
[W]ould you vote for this proposed Amendment: Shouting "Fire" in a crowded theater when there is no fire is not protected as free speech".
No. It's a waste. If you're going to define compelling state interest you may as well do the same with strict scrutiny, intermediate scrutiny, the rational basis test, ad hoc balancing, the bad tendency test, absolutism, preferred freedoms, conditions under which the government may regulate expression, and any constitutional test I may forget the Supreme Court uses to analyze legislation.
Interesting article by Sargent Jr., but I'm afraid a "compelling state interest" has nothing to do with fundamental rights.
How can we easily identify and test "compelling interests"?
We can't. Well, we can look at Court decisions and see where and how the Court applied the strict scrutiny test if we want to do our own analysis, but we can only guess how the justices will apply the standard, if they apply the standard, to individual cases.
Are you comfortable with the doctrine of "compelling interests" as currently formulated?
I'm pretty much comfortable with all the tests SCOTUS has developed over time except in cases where SCOTUS uses the bad tendency test to operate under the assumption that the First Amendment protects the public good as defined by legislatures, rather than the First Amendment protects individual expression. That is downright disturbing.
Paraphrasing Epstein and Walker's "Rights, Liberties, and Justice" 5th edition, the strict scrutiny or suspect class is used when the state discriminates on the basis of a criterion the Court has declared to be inherently suspect. As suspect classification is based on characteristics assumed to be irrational, race is a suspect class because it is inherently arbitrary. For a law to be valid under strict scrutiny it must be found to advance a compelling state interest by the least restrictive means available. The court presumes the state action is unconstitutional and the burden of proof is on the government to demonstrate that the law is constitutional. On the other hand SCOTUS has ruled that suspect class statutes should be accorded only to those groups that constitute discrete and insular minorities that have experienced a history of unequal treatment and a lack of political power. Ergo diversifying the student body without resorting to quotas is a valid state interest.
[W]ould you vote for this proposed Amendment: Shouting "Fire" in a crowded theater when there is no fire is not protected as free speech".
No. It's a waste. If you're going to define compelling state interest you may as well do the same with strict scrutiny, intermediate scrutiny, the rational basis test, ad hoc balancing, the bad tendency test, absolutism, preferred freedoms, conditions under which the government may regulate expression, and any constitutional test I may forget the Supreme Court uses to analyze legislation.
Interesting article by Sargent Jr., but I'm afraid a "compelling state interest" has nothing to do with fundamental rights.
How can we easily identify and test "compelling interests"?
We can't. Well, we can look at Court decisions and see where and how the Court applied the strict scrutiny test if we want to do our own analysis, but we can only guess how the justices will apply the standard, if they apply the standard, to individual cases.
Are you comfortable with the doctrine of "compelling interests" as currently formulated?
I'm pretty much comfortable with all the tests SCOTUS has developed over time except in cases where SCOTUS uses the bad tendency test to operate under the assumption that the First Amendment protects the public good as defined by legislatures, rather than the First Amendment protects individual expression. That is downright disturbing.
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
No. It is unnecessary.
2) How can we easily identify and test "compelling interests"?
Well, the court uses the strict scrutiny standard. I think that works. The State claims an interest.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
Yes.
It should also be noted that strict scrutiny is also applied in cases where a fundamental right is implicated.
No. It is unnecessary.
2) How can we easily identify and test "compelling interests"?
Well, the court uses the strict scrutiny standard. I think that works. The State claims an interest.
- You examine whether or not the restriction serves that interest.
- You examine whether the restriction is necessary in order to fulfill that interest.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
Yes.
It should also be noted that strict scrutiny is also applied in cases where a fundamental right is implicated.
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
Certainly I would not vote for such an amendment, because it is unnecessary. In Schenk v. U.S. 1919, Justice Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
The justice was confused here, since the unwarranted incitement of a dangerous panic, not the mere assertion that the theater is on fire, is the criminal act in the cited example. Anyone does indeed have the right to assert, anywhere and at any time, that any given theater is on fire. One also is subject to reasonable prohibitions against the unwarranted incitement of panic, which have essentially nothing to do with speech. What is punishable is not the speech but the incitement of panic.
For another example, one has the right, as a matter of free speech, to assert that some bogus asset is a good vehicle for someone else's retirement savings. But one is also subject to the laws against fraud. The fraud, of course, involves more than the mere assertion (the intent to decieve and the expectation of profiting from it), and it is the fraud, not the assertion, that is punishable.
What I believe I have just shown is that falsely shouting "Fire!" in a crowded theater is, in fact, simply one of many examples where given bad actions, whether carried out by speech or some other means, may be made criminal. Further, that some things carried out by means of speech may be made criminal, contrary to the opinion of Justice Holmes, carries absolutely no implication for freedom of speech.
Certainly I would not vote for such an amendment, because it is unnecessary. In Schenk v. U.S. 1919, Justice Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
The justice was confused here, since the unwarranted incitement of a dangerous panic, not the mere assertion that the theater is on fire, is the criminal act in the cited example. Anyone does indeed have the right to assert, anywhere and at any time, that any given theater is on fire. One also is subject to reasonable prohibitions against the unwarranted incitement of panic, which have essentially nothing to do with speech. What is punishable is not the speech but the incitement of panic.
For another example, one has the right, as a matter of free speech, to assert that some bogus asset is a good vehicle for someone else's retirement savings. But one is also subject to the laws against fraud. The fraud, of course, involves more than the mere assertion (the intent to decieve and the expectation of profiting from it), and it is the fraud, not the assertion, that is punishable.
What I believe I have just shown is that falsely shouting "Fire!" in a crowded theater is, in fact, simply one of many examples where given bad actions, whether carried out by speech or some other means, may be made criminal. Further, that some things carried out by means of speech may be made criminal, contrary to the opinion of Justice Holmes, carries absolutely no implication for freedom of speech.
QUOTE(Vladimir @ Jul 12 2007, 08:03 AM) 
The justice was confused here, since the unwarranted incitement of a dangerous panic, not the mere assertion that the theater is on fire, is the criminal act in the cited example. Anyone does indeed have the right to assert, anywhere and at any time, that any given theater is on fire. One also is subject to reasonable prohibitions against the unwarranted incitement of panic, which have essentially nothing to do with speech. What is punishable is not the speech but the incitement of panic.
And if someone stated that they weren't trying to incite panic but were just exercising their free speech - what if he was just referring to the effect of a flaming hot jujubee?
"Psst, How's that jujubee?"
"It's like eating... FIIIIIIRRRREEE!!!"
The incitement in such a case would be the result of the speech and not the reason for it. The action is not carried out by means of speech, but occurs as a direct result of the speech.
The question is can the State restrict speech in such a circumstance? Can it go beyond simply implicating the result of speech to implicating the speech itself? Laws regarding the incitement of panic are one thing. Can the State pass a law that specifically states, "Shouting 'Fire!' in a crowded theatre when there is no fire is a crime"?
QUOTE
For another example, one has the right, as a matter of free speech, to assert that some bogus asset is a good vehicle for someone else's retirement savings. But one is also subject to the laws against fraud. The fraud, of course, involves more than the mere assertion (the intent to decieve and the expectation of profiting from it), and it is the fraud, not the assertion, that is punishable.
Different yet again because of intent. Here you have an intent to defraud... it is not simply the result of the speech.
QUOTE
What I believe I have just shown is that falsely shouting "Fire!" in a crowded theater is, in fact, simply one of many examples where given bad actions, whether carried out by speech or some other means, may be made criminal. Further, that some things carried out by means of speech may be made criminal, contrary to the opinion of Justice Holmes, carries absolutely no implication for freedom of speech.
Wrong.
QUOTE(entspeak @ Jul 12 2007, 02:19 PM)
QUOTE(Vladimir @ Jul 12 2007, 08:03 AM)
The justice was confused here, since the unwarranted incitement of a dangerous panic, not the mere assertion that the theater is on fire, is the criminal act in the cited example. Anyone does indeed have the right to assert, anywhere and at any time, that any given theater is on fire. One also is subject to reasonable prohibitions against the unwarranted incitement of panic, which have essentially nothing to do with speech. What is punishable is not the speech but the incitement of panic.
And if someone stated that they weren't trying to incite panic but were just exercising their free speech - what if he was just referring to the effect of a flaming hot jujubee?
"Psst, How's that jujubee?"
"It's like eating... FIIIIIIRRRREEE!!!"
The incitement in such a case would be the result of the speech and not the reason for it. The action is not carried out by means of speech, but occurs as a direct result of the speech.
The case you offer remains incitement to panic. Before the Law, individuals are responsible for the reasonably foreseeable consequences of their actions. It is reasonably foreseeable that shouting "fire" in the alarmed and prolonged manner you describe would cause panic in a crowded theater, and hence, the shouter should be held criminally responsible for this result. But the crime clearly is not the utterance of the word "fire," but the manner of it -- or you would not have described it as you did. If he had instead softly said, "Well, it's like eating, um, fire," this would almost certainly not have incited a panic. This clearly demonstrates that it is not the speech, but its manner, that is the crime in your example.
I man might calmly remark to the persons around him, "My goodness, I do believe this theater is on fire." Or he might write "Fire!" on an index card and hold it up. As speech each of those is the same as shouting "Fire!," but it would be highly debatable that either were an incitement to panic, even if the man were certain that the theater was not on fire.
There is no such thing as criminal speech, pure and simple. Something about the speech, other than its content, must be criminal before it can be made criminal. It is criminal to lie under oath, for example, but it is not criminal falsely to assert the same thing in some other context. It is irrelevant that the crime of perjury is a "direct result" of given speech. It is not the speech, but the perjury, that is the crime.
It is criminal to convey classified information to a foreign agent, whether by speech or any other means. If I reveal classified information to a foreign agent in conversation, you can say "the crime was the direct result of the speech," but the fact remains, it is not my speech, but my revelation of classified information that is the crime
QUOTE(entspeak @ Jul 12 2007, 02:19 PM)
The question is can the State restrict speech in such a circumstance? Can it go beyond simply implicating the result of speech to implicating the speech itself? Laws regarding the incitement of panic are one thing. Can the State pass a law that specifically states, "Shouting 'Fire!' in a crowded theatre when there is no fire is a crime."
The state may not pass a law that limits in any way the content of a person's speech, whether it is about theaters on fire or anything else. For reasons of public comfort and convenience, the state could make it illegal to shout in a theater (presumably except in case of emergency). Shouting and speech are not the same thing. You could should nonsense syllables, for example. Since shouting "Fire!" is shouting, doing so could be prevented by law -- though there would have to be an exception for cases of actual fire.
The state could, I suppose, pass a law making it illegal to say under oath, "My name is John Smith" unless that assertion were true. But it would be silly to do so, since there are already sufficient laws against perjury. Even if such a law were passed, the crime clearly consists of something besides mere speech.
QUOTE(entspeak @ Jul 12 2007, 02:19 PM)
QUOTE
For another example, one has the right, as a matter of free speech, to assert that some bogus asset is a good vehicle for someone else's retirement savings. But one is also subject to the laws against fraud. The fraud, of course, involves more than the mere assertion (the intent to decieve and the expectation of profiting from it), and it is the fraud, not the assertion, that is punishable.
Different yet again because of intent. Here you have an intent to defraud... it is not simply the result of the speech.
And likewise as I remarked above, to incite panic is not simply the result of incorrectly asserting that a theater is on fire; it takes something more than mere speech to make a crime. The speech may be the means of the crime; the speech itself is never the crime. That seems extremely obvious to me; I'm surprised it isn't obvious to you.
QUOTE(Vladimir @ Jul 12 2007, 10:53 AM)
In the case you give, the case you offer is, evidently, unintentional incitement to panic. but it is a matter of settled law that individuals are responsible for the reasonably foreseeable consequences of their actions. It is reasonably foreseeable that shouting fire in the alarmed and prolonged manner you describe would cause panic in a crowded theater, hence, the shouter should be held responsible for it. But the crime is not the utterance of the word "fire," but the manner of the shouting of it. If he had said, "Well, it's like eating, um, fire," this would not be a crime. This clearly demonstrates that it is not the speech, but its manner, that is the crime in your example.
A man could calmly remark to the persons around him, "My goodness, I do believe this theater is on fire." As speech that is the same as shouting "Fire!," but it would be highly debatable that that was an incitement to panic, even if it were a lie.
A man could calmly remark to the persons around him, "My goodness, I do believe this theater is on fire." As speech that is the same as shouting "Fire!," but it would be highly debatable that that was an incitement to panic, even if it were a lie.
I don't think it would be highly debatable at all. Is it highly debatable that someone casually mentioning, "My goodness, I do believe there is a bomb on this plane," would result in panic?
And you are missing the point. Can the State pass a law that states, "You can't shout "Fire!" in a crowded theatre when there is no fire." Would such a law unconstitutionally violate free speech.
Surely, the manner (volume, tone, etc...) in which one expresses oneself through speech is a part of the freedom of speech. Or is the right to freedom of speech only the right to speak calmly.
Perjury is a bad example because one has represented, there is a legal agreement, to tell the truth. Regardless of content, if it is untrue, it is perjury. One could argue that perjury also is a constitutional restriction of freedom of speech.
QUOTE(entspeak @ Jul 12 2007, 04:27 PM)
QUOTE(Vladimir @ Jul 12 2007, 10:53 AM)
In the case you give, the case you offer is, evidently, unintentional incitement to panic. but it is a matter of settled law that individuals are responsible for the reasonably foreseeable consequences of their actions. It is reasonably foreseeable that shouting fire in the alarmed and prolonged manner you describe would cause panic in a crowded theater, hence, the shouter should be held responsible for it. But the crime is not the utterance of the word "fire," but the manner of the shouting of it. If he had said, "Well, it's like eating, um, fire," this would not be a crime. This clearly demonstrates that it is not the speech, but its manner, that is the crime in your example.
A man could calmly remark to the persons around him, "My goodness, I do believe this theater is on fire." As speech that is the same as shouting "Fire!," but it would be highly debatable that that was an incitement to panic, even if it were a lie.
A man could calmly remark to the persons around him, "My goodness, I do believe this theater is on fire." As speech that is the same as shouting "Fire!," but it would be highly debatable that that was an incitement to panic, even if it were a lie.
I don't think it would be highly debatable at all. Is it highly debatable that someone casually mentioning, "My goodness, I do believe there is a bomb on this plane," would result in panic?
Perhaps, but it would be debatable whether this consequence was reasonably foreseeable. If he said the same thing in Armenian, on a normal flight from Kansas City to Denver, the speech would be the same, the reasonably foreseeable consequences different.
QUOTE(entspeak @ Jul 12 2007, 04:27 PM)
And you are missing the point. Can the State pass a law that states, "You can't shout "Fire!" in a crowded theatre when there is no fire." Would such a law unconstitutionally violate free speech.
I have already said that the state can pass a law against shouting in theaters.
QUOTE(entspeak @ Jul 12 2007, 04:27 PM)
Surely, the manner (volume, tone, etc...) in which one expresses oneself through speech is a part of the freedom of speech. Or is the right to freedom of speech only the right to speak calmly.
It would be abusive of free speech if shouting were always illegal, since sometimes it is necessary to shout to be heard. But only when shouting is necessary to speech does it fall under the protection of the first amendment.
QUOTE(entspeak @ Jul 12 2007, 04:27 PM)
Perjury is a bad example because one has represented, there is a legal agreement, to tell the truth.
Yes, but there is always something besides mere speech that constitutes the crime. That is, there always is if freedom of speech is respected. We even go farther and say that their must be a legitimate state interest, such as ensuring the truthfulness of testimony, preventing fraud, or preventing panic in theaters before a "crime" supposedly committed by means of speech can be made criminal. For example, to impugn the honor of the president or to mock Congress cannot be made criminal.
All of this just goes to show that Justice Holmes was either obfuscating matters or was confused when he wrote the words I quoted. I suspect the former. There are innumerable crimes that can be committed by means of speech, and the right of free speech doesn't confer immunity from prosecution for them. But that definitely does not imply that there is some particular speech that is legitimately subject, as speech, to restriction.
This point is both obvious and elementary.
QUOTE(Vladimir @ Jul 12 2007, 11:41 AM)
Perhaps, but it would be debatable whether this consequence was reasonably foreseeable. If he said the same thing in Armenian, on a normal flight from Kansas City to Denver, the speech would be the same, the reasonably foreseeable consequences different.
Well, obviously, if no one understands the speech, it can't have the result. But who on that plane, on which I'm assuming nobody else speaks Armenian, would complain? You are simply talking about not being caught.
Likewise, in a crowded theatre, if someone were to stand up, jump up and down and shout "Fire!" in Armenian - assuming nobody else speaks Armenian, people would just tell the man to sit down and shut up... or have him escorted from the theatre for creating a disturbance.
QUOTE
I have already said that the state can pass a law against shouting in theaters.
I'm sorry, I must have missed that. Where did you say that?
QUOTE
It would be abusive of free speech if shouting were always illegal, since sometimes it is necessary to shout to be heard. But only when shouting is necessary to speech does it fall under the protection of the first amendment.
So, if shouting wasn't necessary... as in my example regarding the flaming hot jujubee... the speech would not be protected. Why?
QUOTE
Yes, but there is always something besides mere speech that constitutes the crime. That is, there always is if freedom of speech is respected. We even go farther and say that their must be a legitimate state interest, such as ensuring the truthfulness of testimony, preventing fraud, or preventing panic in theaters before a "crime" supposedly committed by means of speech can be made criminal. For example, to impugn the honor of the president or to mock Congress cannot be made criminal.
And why can't impugning the honor of the President or mocking Congress be made criminal? Is it because there is no compelling interest that the State can claim to make such speech criminal?
QUOTE
This point is both obvious and elementary.
I'm glad you think so.
Speech is not just words... it is intent, context, tone, manner. Speech conveys an image and not just through the words chosen. So, perhaps I don't understand what you mean by "speech, as speech." Freedom of speech involves more than a collection of letters grouped into what we call words - a collection of vowels and consonants created through physical manipulation in the throat and mouth. What is speech, as speech?
Holmes makes specific reference to circumstances in which the speech is used. So, how is he obfuscating?
If you can't legally shout "Fire!" in a particular situation, is your speech being legally restricted? Yes. If it wasn't, you would be able to shout "Fire!" without legal consequence in that situation. How can you claim that freedom of speech is not implicated? Freedom of speech is just that... the freedom to speak... to express yourself through speech in whatever manner you choose.
A law that states that you can't say whatever you want in a particular situation infringes upon the right to free speech. The question is whether or not that infringement is constitutional or unconstitutional.
That is obvious and elementary.
If the State can show that such an infringement is related to a valid State interest and the infringement is necessary in order to fulfill that interest, the interest is compelling and the remedy is narrowly tailored and the infringement is constitutional. Otherwise, it's not.
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
QUOTE(Vladimir @ Jul 12 2007, 11:41 AM)
Perhaps, but it would be debatable whether this consequence was reasonably foreseeable. If he said the same thing in Armenian, on a normal flight from Kansas City to Denver, the speech would be the same, the reasonably foreseeable consequences different.
Well, obviously, if no one understands the speech, it can't have the result. But who on that plane, on which I'm assuming nobody else speaks Armenian, would complain? You are simply talking about not being caught.
Likewise, in a crowded theatre, if someone were to stand up, jump up and down and shout "Fire!" in Armenian - assuming nobody else speaks Armenian, people would just tell the man to sit down and shut up... or have him escorted from the theatre for creating a disturbance.
And since speech in Armenian is speech, this proves my point that it is not speech that is being restricted when we say "You mayn't shout 'Fire!' in a crowded theater. Get it?
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
QUOTE
I have already said that the state can pass a law against shouting in theaters.
I'm sorry, I must have missed that. Where did you say that?
I quote my post above: "For reasons of public comfort and convenience, the state could make it illegal to shout in a theater (presumably except in case of emergency)."
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
QUOTE
It would be abusive of free speech if shouting were always illegal, since sometimes it is necessary to shout to be heard. But only when shouting is necessary to speech does it fall under the protection of the first amendment.
So, if shouting wasn't necessary... as in my example regarding the flaming hot jujubee... the speech would not be protected. Why?
Shouting "Fire!" in a sentence about a jujubee, in a crowded theater, is legitimately criminalizable, as I said, because its bad consequences are forseeable. It is not the speech, which is about the jujubee, but the incitement of panic that at the fault. The shouting is material because if the sentence about the jujubee had been uttered with shouting "Fire!," a panic would very likely not have ensued (or would not have been reasonably forseeable).
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
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Yes, but there is always something besides mere speech that constitutes the crime. That is, there always is if freedom of speech is respected. We even go farther and say that their must be a legitimate state interest, such as ensuring the truthfulness of testimony, preventing fraud, or preventing panic in theaters before a "crime" supposedly committed by means of speech can be made criminal. For example, to impugn the honor of the president or to mock Congress cannot be made criminal.
And why can't impugning the honor of the President or mocking Congress be made criminal? Is it because there is no compelling interest that the State can claim to make such speech criminal?
Although in principle, laws against fraud to not imede your right to say that a muckhole in Florida is a "retirement estate," there is a certain tendency for laws against fraud to impede what people say about the value of given assets. It is because of this social effect on expression that there must a valid government interest in preventing fraud must be shown before under which statements about asset values could be used as evidence for fraud. But in principle, you right to make statements about the value of given assets is sacrosanct.
The government might say, "your right to say whatever you want about the president is sacrosanct, yes, but you must not attempt to blacken the reputation of the president." It is here where this consider of valid government interest comes in.
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
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This point is both obvious and elementary.
I'm glad you think so.
Speech is not just words... it is intent, context, tone, manner. Speech conveys an image and not just through the words chosen. So, perhaps I don't understand what you mean by "speech, as speech." Freedom of speech involves more than a collection of letters grouped into what we call words - a collection of vowels and consonants created through physical manipulation in the throat and mouth. What is speech, as speech?
Really, it's hard for me to believe that you're not obfuscating here. Have you never heard that it is the content that is protected? Speech as speech is the message. The content of what is being said. As speech, (1) shouting "Fire!", (2) holding up an index card upon which "Fire!" is written, and (3) casually remarking, "Mon Dieu! Je croix que ce theatre est en feu. are exactly the same thing.
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
Holmes makes specific reference to circumstances in which the speech is used. So, how is he obfuscating?
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
If you can't legally shout "Fire!" in a particular situation, is your speech being legally restricted? Yes. If it wasn't, you would be able to shout "Fire!" without legal consequence in that situation. How can you claim that freedom of speech is not implicated? Freedom of speech is just that... the freedom to speak... to express yourself through speech in whatever manner you choose.
Your "speech," in the sense you are using that term, is being restricted. Your right of free speech, your speech "as speech" as I would say, is not being restricted because the content of your speech is not being restricted. You are free as a bird to claim that any theater, whether burning or not, is on fire. You are just not free to incite panic. Likewise your right of free speech is not being restricted by laws against fraud. Claim that some worthless piece of swampland is a "Forida estate" all you want. Just don't try to sell it to someone on the false pretense that that is true.
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
A law that states that you can't say whatever you want in a particular situation infringes upon the right to free speech. The question is whether or not that infringement is constitutional or unconstitutional.
That is obvious and elementary.
That is obvious and elementary.
The first sentence is precisely untrue. The only right of free speech that you enjoy is the one guaranteed by the constitution. The right of free speech in no way protects you from punishment for crimes that were implemented via your spoken or written words.
QUOTE(entspeak @ Jul 12 2007, 05:18 PM)
If the State can show that such an infringement is related to a valid State interest and the infringement is necessary in order to fulfill that interest, the interest is compelling and the infringement is constitutional. Otherwise, it's not.
No, the state can never restrict the content of speech; that is absolute. Whatever is criminalizable must go beyond content of speech, e.g., your perjury, commission of fraud, incitement of panic, revelation of classified information, or whatever. The state interst to which you refer must, of course, be present before a person's speech can be taken as the basis for prosecution of such a crime.
Since I have been unable to enlighten you on these points with all the words I have used heretofore, I think I will now just give up. So go ahead and have the last word. Others here may judge which one of us has the correct understanding of these issues.
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
This isn't necessary. It is long established that rights are not without limits. We should not be making Constitutional Amendsments based upon very specific actions (ala prohibition). The Constitution is for broad concepts, not minutia.
2) How can we easily identify and test "compelling interests"?
In court, which is not quick nor easy. As detailed above, it is the government's responsibility to defend its infringement onto the rights of its citizens. The burden of proof is dependant upon the type of right being infringed upon.
For example, protest rally permits are clearly a violation of the people's right to assemble. However, there is a lawful reason to require them (public order and safety) in some instances.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
It seems to function fine. I have more of a problem with the floating definition of fundamental versus natural rights which seems to blow in the wind at times.
This isn't necessary. It is long established that rights are not without limits. We should not be making Constitutional Amendsments based upon very specific actions (ala prohibition). The Constitution is for broad concepts, not minutia.
2) How can we easily identify and test "compelling interests"?
In court, which is not quick nor easy. As detailed above, it is the government's responsibility to defend its infringement onto the rights of its citizens. The burden of proof is dependant upon the type of right being infringed upon.
For example, protest rally permits are clearly a violation of the people's right to assemble. However, there is a lawful reason to require them (public order and safety) in some instances.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
It seems to function fine. I have more of a problem with the floating definition of fundamental versus natural rights which seems to blow in the wind at times.
QUOTE(Vladimir @ Jul 12 2007, 01:24 PM)
And since speech in Armenian is speech, this proves my point that it is not speech that is being restricted when we say "You mayn't shout 'Fire!' in a crowded theater. Get it?
It is speech that is being restricted. You are just not caught violating that restriction because nobody understands what you're saying.
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I quote my post above: "For reasons of public comfort and convenience, the state could make it illegal to shout in a theater (presumably except in case of emergency)."
That is a different law. And such a broad law would definitely be unconstitutional. The law that you believe the State could create would mean that shouting to tell the guy three rows up to sit down because he's blocking the screen would be illegal or shouting to tell the guy down the aisle to stop talking on his cellphone would be illegal. It is too broad. In order to restrict speech the law must be narrowly tailored to serve a legitimate interest.
QUOTE
Shouting "Fire!" in a sentence about a jujubee, in a crowded theater, is legitimately criminalizable, as I said, because its bad consequences are forseeable. It is not the speech, which is about the jujubee, but the incitement of panic that at the fault. The shouting is material because if the sentence about the jujubee had been uttered with shouting "Fire!," a panic would very likely not have ensued (or would not have been reasonably forseeable).
But if he'd just shouted, "AHHHH!" - while possibly initially frightening and disturbing - could not reasonably, in and of itself, create a panic. It is shouting that word that would create the panic. People pay attention to that word. There's a reason why they say if you're being raped or mugged that you should shout "Fire!" and not "Help!" or "Rape!"
QUOTE
Really, it's hard for me to believe that you're not obfuscating here. Have you never heard that it is the content that is protected? Speech as speech is the message. The content of what is being said. As speech, (1) shouting "Fire!", (2) holding up an index card upon which "Fire!" is written, and (3) casually remarking, "Mon Dieu! Je croix que ce theatre est en feu. are exactly the same thing.
But we are talking about a law that prohibits shouting "Fire!" in a crowded theatre. So, no... they're not exaclty the same thing. #2 and #3 are different things. If we were talking about a law that prohibit the use of the word "Fire" in any context in a crowded theatre, you might have a point... I would argue that such a law would be unconstitutional. But, that's not what we're talking about... that's not what Holmes was talking about.
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No, the state can never restrict the content of speech; that is absolute.
Absolutely, positively, unequivocably false. No right is absolute. No right is absolutely inviolable. That is why the strict scrutiny standard exists. If the State could never restrict the content of speech, there would be no reason to apply strict scrutiny to cases that implicate free speech... any law that infringed or restricted free speech would be automatically unconstitutional if the right were absolute and inviolable.
We are not talking about a law that prohibits the incitement of panic. We are talking about a law that would specifically prohibit shouting "Fire!" in a crowded theater. The State's interest would be in public safety because of the possibility of panic.
QUOTE
Since I have been unable to enlighten you on these points with all the words I have used heretofore, I think I will now just give up. So go ahead and have the last word. Others here may judge which one of us has the correct understanding of these issues.
Gracious of you.
QUOTE(Amlord)
This isn't necessary. It is long established that rights are not without limits.
I agree.
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater". Setting aside its lightweight nature and arguments against cluttering up the Constitution, would you vote for this proposed Amendment: Shouting "Fire" in a Crowded Theater when there is no fire is not protected as Free Speech"
Yes, I would. The claims that it is unnecessary all hinge on case law and common sense. Case law, as we all know from the sordid history of racial judicial decisions in this country, is much more malleable than the Constitution itself. As for common sense, it doesn't take but a couple of days in a courtroom to figure out that our legal system seems to have put a hit out on it. A child, a Vulcan, or a computer will all conclude that any restriction on shouting fire is an infringement on free speech. As it is written, the First Amendment does not permit the infringment.
Now, even though I appear to be disagreeing with all of you, this question still serves its purpose. Nobody objected to the infringement itself, not one of you. Essentially, you've all adopted a "compelling interest" argument. None of you are willing to admit, as did Justice O'Connor, that the infringement does land one smack dab in the middle of the First's protections. You all do seem to argue, per Brennan, that the grave abuse of the right in concert with the danger to others justifies the infringement. I got no heartburn with that, based on the principles I articulate below.
2) How can we easily identify and test "compelling interests"?
Simple. If the State claims a "compelling interest", then rather than having a mere 5 out of 9 judges agree with the State, put it to the people. Any non-emergency measure that truly is a "compelling interest" should be able to get the same backing as a Constitutional Amendment. Aside from a few social anarchists, sociopaths, kneejerk contrarians and panic voyeurs, I'm pretty sure that you could get 99.9% of the population to agree with the Fire Shoutin' Amendment if a purely logical absolutist reading of the First were the order of the day. Any interest that is "compelling" should be pretty obvious even to the pointy heads in black robes, yet look at how many "compelling interest" decisions have come down since the doctrine was fully articulated that have been 5-4.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
No, because it has become an extra-constitutional means for a mere majority to amend the Constitution. It is especially egregious when the "endangered paramount interest" is a highly contentious one that isn't even articulated in the Constitution.
The Bongs 4 Jesus decision is a good example. While I do agree with the outcome, I do so based on Thomas's opinion, not the majority. I don't think that high school students, at high school functions, have the full panoply of rights that adults possess. I don't think that the "compelling interest" standard, which actually only garnered 4 of 8 votes, is met, and I seriously doubt if you could get 2/3s, much less 3/4s of the citizenry to agree that the gov't's interest in fighting drug use would justify this restriction. Perhaps if the banner said "Bong Hits for $5"...
Yes, I would. The claims that it is unnecessary all hinge on case law and common sense. Case law, as we all know from the sordid history of racial judicial decisions in this country, is much more malleable than the Constitution itself. As for common sense, it doesn't take but a couple of days in a courtroom to figure out that our legal system seems to have put a hit out on it. A child, a Vulcan, or a computer will all conclude that any restriction on shouting fire is an infringement on free speech. As it is written, the First Amendment does not permit the infringment.
Now, even though I appear to be disagreeing with all of you, this question still serves its purpose. Nobody objected to the infringement itself, not one of you. Essentially, you've all adopted a "compelling interest" argument. None of you are willing to admit, as did Justice O'Connor, that the infringement does land one smack dab in the middle of the First's protections. You all do seem to argue, per Brennan, that the grave abuse of the right in concert with the danger to others justifies the infringement. I got no heartburn with that, based on the principles I articulate below.
2) How can we easily identify and test "compelling interests"?
Simple. If the State claims a "compelling interest", then rather than having a mere 5 out of 9 judges agree with the State, put it to the people. Any non-emergency measure that truly is a "compelling interest" should be able to get the same backing as a Constitutional Amendment. Aside from a few social anarchists, sociopaths, kneejerk contrarians and panic voyeurs, I'm pretty sure that you could get 99.9% of the population to agree with the Fire Shoutin' Amendment if a purely logical absolutist reading of the First were the order of the day. Any interest that is "compelling" should be pretty obvious even to the pointy heads in black robes, yet look at how many "compelling interest" decisions have come down since the doctrine was fully articulated that have been 5-4.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
No, because it has become an extra-constitutional means for a mere majority to amend the Constitution. It is especially egregious when the "endangered paramount interest" is a highly contentious one that isn't even articulated in the Constitution.
The Bongs 4 Jesus decision is a good example. While I do agree with the outcome, I do so based on Thomas's opinion, not the majority. I don't think that high school students, at high school functions, have the full panoply of rights that adults possess. I don't think that the "compelling interest" standard, which actually only garnered 4 of 8 votes, is met, and I seriously doubt if you could get 2/3s, much less 3/4s of the citizenry to agree that the gov't's interest in fighting drug use would justify this restriction. Perhaps if the banner said "Bong Hits for $5"...
My objection to such a plan would be this.
I have the feeling that, in certain cases, a majority of average American citizens would be even more likely to infringe the rights of their fellow citizens than the government. I suspect a majority of Americans, for example, would vote to silence the tiny Phelps family cult in their protests against military funerals. A majority of Americans would also be likely, I think, to banish cross burning and flag burning. Since the government cannot show a "compelling interest" in such cases, it is less likely to infringe on the rights of its citizens than Joe Six-Pack.
I have the feeling that, in certain cases, a majority of average American citizens would be even more likely to infringe the rights of their fellow citizens than the government. I suspect a majority of Americans, for example, would vote to silence the tiny Phelps family cult in their protests against military funerals. A majority of Americans would also be likely, I think, to banish cross burning and flag burning. Since the government cannot show a "compelling interest" in such cases, it is less likely to infringe on the rights of its citizens than Joe Six-Pack.
QUOTE(Bikerdad @ Jul 12 2007, 07:12 PM)
Yes, I would. The claims that it is unnecessary all hinge on case law and common sense.
I hate when my argument hinges on case law and common sense... when will I ever learn?
QUOTE
None of you are willing to admit, as did Justice O'Connor, that the infringement does land one smack dab in the middle of the First's protections.
First, this is the problem when you take things out of context and snip them, as you have done. Justice O'Connor was referring to equal protection... the 14th Amendment... and the principle of consistency. She was not referring to First Amendment protections.
Second, O'Connor also mentions the standard that determines whether such an infringement of equal protection is justified. So, she admits, that despite the existence of an infringement... said infringement may be justifiable.
In regards to the issue of shouting "Fire!" in a crowded theatre, the only one denying infringement, as I see it, is Vladimir.
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Simple. If the State claims a "compelling interest", then rather than having a mere 5 out of 9 judges agree with the State, put it to the people. Any non-emergency measure that truly is a "compelling interest" should be able to get the same backing as a Constitutional Amendment. Aside from a few social anarchists, sociopaths, kneejerk contrarians and panic voyeurs, I'm pretty sure that you could get 99.9% of the population to agree with the Fire Shoutin' Amendment if a purely logical absolutist reading of the First were the order of the day. Any interest that is "compelling" should be pretty obvious even to the pointy heads in black robes, yet look at how many "compelling interest" decisions have come down since the doctrine was fully articulated that have been 5-4.
If a lack of common sense is what you were looking for, then this idea does benefit from that. The courts role in the checks and balances is, at times, to protect the minority from the majority. If you place the decision making back into the hands of the majority, you've kind of defeated the purpose.
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No, because it has become an extra-constitutional means for a mere majority to amend the Constitution.
Interpretation of the Constitution is, by definition, "extra-constitutional". If we simply adhered to the letter of the Constitution, as written, there would be no need to interpret.
You're process of Amendment to establish justification is not efficient, is impractical, would result in a list of Amendments a mile long, and is in no way easy. Are we to set up elections every time someone claims an infringement?
QUOTE(Bikerdad @ Jul 12 2007, 02:24 AM)
1) "Compelling interest" originated in First Amendment cases, and as such they are helpful in considering its legitimacy. The classic example used for a "compelling interest" in restricting free speech is "shouting fire in a crowded theater".
Except, that's not an example of the Compelling Interest doctrine, which as your link indicated, was developed over a generation after Justice Holmes' fire-in-the-theater example. That example he gave is actually an expression of a much older doctrine in Anglo-American law. I never pass up an excuse to quote the guy I named myself after. Here's one of the rules of legal interpretation he cites:
QUOTE(William Blackstone's Commentaries on the Laws of England @ Vol. 1)
4. As to the effects and consequence, the rule is, that where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them. Therefore the Bolognian law, mentioned by Puffendorf, which enacted "that whoever drew blood in the streets should be punished with the utmost severity," was held after a long debate not to extend to the surgeon, who opened the vein of a person that fell down in the street with a fit.
It's not about "compelling interest", it's about common sense. Anyone with an ounce of it would be able to tell you that falsely shouting fire in a crowded theater is not protected speech, because it's absurd to say that it is. But it is absolutely not absurd to say that laws against racial discrimination prohibit racial discrimination even when the objective is "diversity", or even righting past wrongs.
3) Are you comfortable with the doctrine of "compelling interests" as currently formulated?
Hell no. Your ESR link has it exactly right. It's a totally bogus and self-serving legal concept that judges have cooked up in order to disburden themselves of having to be held to the law. It's absolutely got to go.
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