Yielding rights when the occasion demands it

Yielding rights when the occasion demands it

Leonard Hitchcock I have always assumed that most people are familiar with the stereotypical example of a case in which the First Amendment right to free speech does not apply: crying out loudly, “Fire!” in a crowded theater when there is no fire. I have also assumed that most people understand why that speech act is not protected: because it endangers the lives and limbs of the theatergoers, who, panicking at the cry, would trample one another in trying to escape. It is also the case that uttering words calculated to incite a crowd to riot are not protected, nor is publicly lying about someone with the intent to defame them. So, too, are what are called “fighting words,” defined by the Supreme Court in 1942 as words which, "by their very utterance, inflict injury or tend to incite an immediate breach of the peace.” The underlying assumption in these cases is, again, that harm may come to others because of those words, so we do not enjoy complete freedom in uttering them. It seems evident, after a bit of thought, that all of the guaranteed freedoms of the First Amendment of the U.S. Constitution have limits, because there can always be circumstances in which their exercise threatens harm to others without justification. The same can be said for freedoms not specified by the Constitution, but implied by it. Consider the freedom to dress as you wish. Most of the time, one’s choice of clothes to wear is not […]

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