The Annoyed Man wrote:JALLEN wrote:Very few of our "rights" are absolute, fire in a crowded theater and all that, so some accommodations at the crossroads have to be tolerated.
JALLEN, I think that illustration gets abused some times. The "shout fire in a theater" thing is like the "discharge of firearm within city limits" thing. Of course, it is perfectly legal to discharge a firearm within city limits to protect your own
or someone else's life. You just can't do it irresponsibly, and without a good reason. Similarly, it is perfectly legal to shout "FIRE!" in a theater, if there is indeed a fire, and people need to get out RIGHT NOW. But you can't shout it in a theater where there is no fire, just to get a rise out of the patrons. The question isn't whether or not you can shout fire (or shoot a gun) if there is a need, the question is whether or not you can do so when there is no need.
......
The illustration is often used because it is so familiar and easy to understand. The downside is that it is often misunderstood, and often misused. Holmes' point was that free speech has limits, irresponsibility being one of the limits. It is interesting to note that it is not a point of law, mere dictum, in a case that was overruled decades ago. It was not the holding in a case, or of that case, merely illustrative of a point. Holmes subsequently sharpened his view of free speech, in dissent in
Abrams:
"The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
Back to the main point with the 30.06 signs, when important social values clash, often a practical compromise is achieved, albeit after sometimes long and bitter struggles. A prime example is
Miranda, balancing Constitutional rights against the need for effective law enforcement. Purists on both sides are unhappy, which may indicate an effective balance.