We all know the "falsely shouting fire in a crowded theater" exception to the First Amendment (see Schenck v. U.S.). Can a case be made that statements or activities could be actionable even if the standard of falsity isn't met but the person making the statement knows mayhem is likely to ensue, perhaps even wants it to? The thought springs from a reading of "Nightclub lot shooting incites group response," a lengthy story in Frost Illustrated that is recommended reading. Some highlights:
For years, community activist Linda Wade has been trying to spread the word about the dangers some forms of entertainment hold for young people. Most recently, Wade and her cohorts at Nature-Nurture Urban Consultants and Entrepreneurs, an activist group studying the effect of rap, hip hop and the media on young people, worked to alert police officials and an entertainment venue about possible problems rapper Waka Flocka Flame might bring to town in the wake of eight people being shot after his March concert in Gary. She said the entertainer and his entourage's onstage behavior might have contributed to the shootings and did not want to see that violence repeated here.
That concert was cancelled for reasons other than Wade's warning, but on May 8, another incendiary artist, Rick Ross, performed at Piere's Entertainment Center, 5629 Saint Joe Road, just weeks ago. That evening ended with two people being shot outside the entertainment center's All-Star/Club V door early in the morning—the same morning, 20-year-old Hector Tenorio was murdered outside Rick O'Shays Irish Pub, 4610 Parnell Avenue in the Broad Ripple Place entertainment complex. The men at the Piere's shooting were not seriously injured, but Wade said she wonders if Ross' appearance there might have created the kind of atmosphere in which shootings occur.
[. . .]
Worse, said Wade, Ross is the epitome of someone going “bad” for the sake of advancing his career— especially after he was exposed as something of a fraud early in his career.
According to Wade, Ross hit the scenes years ago, bragging on his recordings that he was a no-nonsense, violent drug dealer. In truth, work records showed that he was actually a former correctional officer, working the other side of the law. In light of that embarrassing revelation, Wade said Ross went to work, going out of his way to build his “street” credibility to enhance his recording career. That culminated, recently in Ross' “crew” beating a well-known DJ Vlad and entertainment executive, whose television channel broadcast an exposé on Ross' false image as a street thug.
[. . .]
Wade said it's obvious to her and her colleagues that people like Ross are willing to incite and even perpetrate violence to sell an image and records. And that, she said, is not the type of product that needs to be promoted in Fort Wayne—or, for that matter, anywhere.
I suspect a First Amendment case wouldn't fly -- establishing sure knowledge of a concert's effects would be problematic even if such a case weren't breaking new legal ground. Maybe there could be a charge of inciting a riot or (little "Law and Order" lingo here) "depraved indifference." But Wade raises important issues that deserve a wider discussion. Entertainment venues do have control over the acts they invite, and community members can certainly let those venues know what they appreciate and don't appreciate.
Comments
If this flies (and I agree it won't), the Tea Partiers will have to be a little more careful about what they and their signs say at political rallies.
I don't mean to just pick on the right, by the way. The lefties were just as angry in the 60s.
For what it's worth, I think the "crowded theater" exception is unconstitutional. The First Amendment right to free speech is absolute.
Any resulting damage is a matter for civil courts, not the criminal justice system.
I was gonna just let it pass, but I can't. I just can't.
Littlejohn, How in the he&& did you make the leap from rap groups, bad performances, teenagers, thugs, gunshots at nightclubs etc to Tea Party rallies?
Littlejohn, Tim's right. There's no comparison. The gangsta rappers are a lot more civilized than the Tea Party morons.
Yeah Lewis, nothing more uncivilized than a bunch of middle-aged, middle-class people with jobs. Every Democrat politicians worst nightmare.
He shoots...he SCORES!
(In a battle of wits, NEVER bring a knife to Tim's gunfight...LOL)
;)
Oh please. Have you even seen half of these protesters? They're racist and ignorant. And what kind of jobs do they have that let them spend their time protesting all the time. They're nothing more than the new version of dirty hippies.
"The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current High Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are blatantly obvious."
At least make mention of the current holding on the law. I would think you'd be more familiar with the 1969 ruling than the ruling in 1919. Even I don't think you're that old.
As for teabaggers: not so much uncivilized as *ragingly* clueless and angry.