Comment by mrandish

> So, you can yell "fire" falsely and cause a stampede?

As the article I linked points out, that trope was (and still is) a hypothetical that tells us nothing useful about first amendment speech rights. The reason the article is so valuable and often cited is when one of those first amendment tropes is tossed into a discussion, it's usually to imply some specific speech which is protected - is not protected. They are often deployed either in error by those who don't understand how very narrow and incredibly rare first amendment exceptions actually are, or as a bad faith rhetorical device by those who already know the first amendment protects speech they wish it didn't.

As a student and fan of first amendment jurisprudence, the fascinating thing about the tropes is that most of them come from old, exceptional cases where the court got it wrong. Cases which were either reversed by later courts or so thoroughly disavowed they've never come back before the court. A long time ago, various eras of SCOTUS courts wobbled around in the long process of figuring out first amendment exceptions and some bad decisions were made - then later corrected. After decades of trying (and failing) to work out a set of rules permitting "good speech" while stopping "bad speech", it became obvious it was impossible.

Over the past 50 years or so, SCOTUS narrowed in on a detailed set of precedents which are as consistent and crystal clear as they are radically extreme - always protecting almost ALL speech - including the worst, most vile, offensive and hateful speech that has no redeeming value whatsoever. Speech I personally despise and wish no one ever said. While I hate the speech (and, often, the speaker), I fiercely defend the first amendment which protects it. Tolerating the awful things people I dislike do with their rights is the price of still having those rights when we need them most. After all those decades of trial and error, in the end, I think SCOTUS finally got it just about perfect.

So the next time you feel like hauling out the "fire... crowded theater" thing, consider instead just saying "The goddamn first amendment fully and absolutely protects this offensive, vile, bullshit speech - and I hate that these assholes said this shit because it's wrong - and here's why..." This would have the benefit of very likely being correct regarding the first amendment and I'd totally respect your feelings and even probably agree with you.