Tuesday, June 13, 2006

I Have a First Amendment Question

The first amendment to the Constitution states, "Congress shall make no law... adbridging the freedom of speech". It could not possibly say this any clearer without tacking "and we really mean it" to the end. The fourteenth amendment, as we all know, extends this prohibition to the states. (This interpretation is slightly disputed but it doesn't matter.)

So why do people persist in saying that the first amendment does not protect the right to shout "fire" in a crowded theater, or words to that effect? It seems to me that the first amendment protects exactly that. That is, it protects your right not to be prosecuted for shouting that. The theater owner can still kick you out.

I am aware that people sometimes write bad laws. But there are so many better ways to phrase the amendment, so many easy ways ("political" speech, for instance) that we have to stop trying to save the framers from themselves, and just read the amendment the way they wrote it.

Consider: If they really had meant to allow shouting "fire" etc. what better language could they have used?

1) "This amendment is to be taken literally?" Isn't that understood in legal documents?

2) Enumerate a bunch of marginal cases and specify that they are legal? That's pretty undignified, although it would be a nice touch in all huge sweeping hard-to-repeal laws like this.

If I were a framer who was perversely committed to legalizing fire-shouting, I would have thought the language in the Constitution, as written, was a peach.


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