dontknowwhatshappening

It's misinformation for Tim Walz to say the legal standard for harmful speech is that a person cannot yell fire in a crowded theater. This is not the law. See below for a brief explanation. But thankfully, the First Amendment does not allow the government to censor Tim Walz or punish him for this misinformation—even though he has said the First Amendment doesn't protect misinformation, which is also misinformation about the law. Brandenburg v. Ohio has been the law in this area (incitement / advocacy of illegality) since that case was decided in 1969. Brandenburg replaced the clear and present danger test and established the standard for when speech advocating for illegal acts (also called incitement of illegality or harm) may be punished. It is a stringent standard called the "incitement test." And the yelling-fire-in-a-crowded-theater line wasn't even a legal standard before the decision in Brandenburg: It was dicta when it appeared in Schenck v. United States (1919). Dicta means it wasn't even binding precedent in that case as it was not necessary to resolve the case. The Schenck case didn't involve fires or yelling at all but instead was a case about a person convicted for handing out leaflets, which ironically didn't pose a clear and present danger of imminent harm. In short, just remember, the "yelling-fire-in-a crowded-theater" line is not the law and never has been. It's just a catchy saying. And the clear-and-present danger test is also not the law even though it was the law for a few decades. Finally, if someone you know thinks the "yelling fire" line is the law, have some fun asking questions showing why it's a foolish, untenable standard before telling them it never was the law. Examples: what if a person needed to shout "fire" falsely to clear everyone out of a theater for purposes of an emergency, to protect people from another more serious risk of some external harm? What if an actor had to yell "fire" as part of an act in a play? What if a person yelled it falsely but was mistaken? @DrJBhattacharya @houmanhemmati @shellenberger