Alito and the 1st amendment

[GMDino]

Oy.

When I read about this earlier today I thought maybe it was a misquote, or even made up.

Oy!

pic.twitter.com/UTxB9WgHsW

— Bad Legal Takes (@BadLegalTakes) October 27, 2022

 


I mean, he's a SC Justice...he should know better.  But then he's the guy who over turned Roe V Wade so maybe he just isn't that good at understanding law?


https://www.theatlantic.com/national/archive/2012/11/its-time-to-stop-using-the-fire-in-a-crowded-theater-quote/264449/

Quote:First, it's important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements.

Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU's Gabe Rottman explains, "It did not call for violence. It did not even call for civil disobedience."


The Court's description of the pamphlet proves it to be milder than any of the dozens of protests currently going on around this country every day:

Quote:It said, "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights."

The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a "clear and present danger" to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.

Two similar Supreme Court cases decided later the same year--Debs v. U.S. and Frohwerk v. U.S.--also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. (Read Ken White's excellent, in-depth dissection of these cases.) Together, the trio of rulings did more damage to First Amendment as any other case in the 20th century.


In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).



Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as thefinal word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it's "worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech." Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, "the most famous and pervasive lazy cheat in American dialogue about free speech."