I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

Name:
Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Monday, September 08, 2008

Is it constitutional to shout "fire" when there's a fire?

Is shouting "fire" in a crowded theatre when there is a fire constitutionally-protected speech? According to the reasoning of the infamous Lemon Test, the answer could be no.

The Lemon Test, which is used in establishment clause cases, is usually divided up into (1) a "purpose prong" -- The government's action must have a secular legislative purpose, and (2) an "effect prong" -- The government's action must not have the primary effect of either advancing or inhibiting religion. The Lemon test originally had a third prong, the "entanglement prong," i.e., the government action must not result in excessive "entanglement" with religion, but this prong is now usually or often incorporated into the "effect" prong.

Under a freedom-of-speech counterpart of the Lemon Test, which I will call the Lime Test, a court could rule that it is unconstitutional to shout "fire" in a crowded theatre when there actually is a fire. Here is how:

Warning people to escape a fire is a legitimate purpose that is "not a sham," and hence shouting "fire" in a crowded theatre when there is a fire passes the Lime Test's "purpose prong." However, the effect of shouting fire might be people getting hurt in a stampede for the exits, so shouting "fire" in a crowded theatre when there is a fire fails the Lime Test's "effect prong" and hence is unconstitutional.
.
This is exactly the line of reasoning that was used in deciding the Selman v. Cobb County evolution disclaimer textbook sticker case. Judge "Blooper" Cooper decided that the stickers' purposes of (1) fostering critical thinking and (2) reducing offense to the fundies are "secular purposes that are not a sham," and therefore ruled that the stickers passed the Lemon Test's purpose prong. However, the judge ruled that the public perceived the stickers as endorsing religion and therefore ruled that the stickers failed the effect prong and were therefore unconstitutional. The problem here is that the rigid Lemon Test is divided up into two separate, independent "prongs," and so the judge could not consider whether those two secular purposes -- fostering critical thinking and reducing offense to the fundies -- outweighed the public perception of endorsement of religion, a perception that should not carry much weight because it basically concerns only a right to "not be offended" and which therefore should have been outweighed by the "critical thinking" factor, especially considering that criticisms of evolution were not taught or even specifically mentioned. The "reducing offense to the fundies" factor might be considered to be a tradeoff between offending fundies and offending non-fundies, but the fact that only evolution was actually taught greatly favored the non-fundies to begin with. In contrast, since a court would not actually use the hypothetical "Lime Test" in deciding the "shouting fire" case, a court would be free to decide that the purpose of warning people to escape a fire outweighs the risk that people could get hurt in a stampede for the exits. The Lemon Test is a kind of a double jeopardy -- if you don't get stabbed by one prong, you could get stabbed by the other. I guess that's why they are called "prongs."

In the Kitzmiller v. Dover decision, Judge "Jackass" Jones did not express any opinions at all about whether the ID statement encouraged critical thinking or reduced offense to the fundies.

The courts have been very inconsistent and hypocritical about the issue of fostering critical thinking in the public schools. The goal of fostering critical thinking in schools was treated as a compelling state interest in deciding ACSI v. Stearns, the case concerning UC accreditation of fundy high school courses and textbooks, but was given short shrift in Selman v. Cobb County and no shrift at all in Kitzmiller v. Dover.
.

Labels:

6 Comments:

Blogger Nada Platonico said...

I'm not sure what to make of this, besides being typical Larry drivel.

If it's an attempt at Onion-esque satire, Larry has a long way to go. Try again.

Monday, September 08, 2008 7:41:00 PM  
Blogger Phae said...

This is so hilariously amazing.

Larry, in expressing his "own" thoughts on freedom of speech, somehow manages to by coincidence pick the very same example used by Justice Oliver Wendell Holmes in 1919, when such limitations on freedom of speech were first acknowledged.

He labels such an idea the "Lime" test in bizarre mimicry of a different and unrelated court case that yielded a rule regarding the establishment clause, the "Lemon" test, all the while ignorant that he is clumsily hacking away at ancient jurisprudence.

Larry, I know that you have neither the training nor even the faintest whiff of ability when it comes to law. But seriously: this is hilarious. You have unwittingly stolen and misused one of the most famous and classic examples in the entire history of law. There's even a Wikipedia article on that specific example( http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater)!

If you had intentionally set out to make yourself look incredibly stupid, you could not have done a better job. Well, except for the time you quoted an Onion article as if it wasn't parody while missing its point.

Bravo!

Tuesday, September 09, 2008 2:54:00 AM  
Blogger Larry Fafarman said...

Phae,
>>>>> Larry, in expressing his "own" thoughts on freedom of speech, somehow manages to by coincidence pick the very same example used by Justice Oliver Wendell Holmes in 1919, <<<<<<

It's no coincidence. I used the example to try to help get my point across. I wanted to show the absurdity that can result if the Lemon Test's non-integrated two-prong approach is applied to the Holmes example.

>>>>>> Larry, I know that you have neither the training nor even the faintest whiff of ability when it comes to law. <<<<<<

That's easy for anyone to say, dunghill. "Phae, I know that you have neither the training nor even the faintest whiff of ability when it comes to law." What does it prove? Absolutely nothing -- except that you are a stupid jerk.

I intended to raise some questions here:

The judge ruled that there were two secular purposes here that were not shams: (1) encouraging critical thinking and (2) reducing offense to the fundies. Why is a "secular purpose that is not a sham" considered to be an extenuating or mitigating circumstance only for the Lemon Test's "purpose prong" and not for the "effect prong"? There is a general judicial principle that things that would otherwise violate the Constitution may be excused for "compelling reasons." But what constitutes a "compelling reason"? Does a "compelling reason" have to be a life-or-death matter, or can it just be something that is comparatively important in a tradeoff of different factors? By itself, "encouraging critical thinking" may not seem particularly compelling, but it is arguably important in comparison to the "right" of non-fundies to not be offended by an evolution disclaimer statement. In the ACSI v. Stearns review of UC's textbook accreditation decisions, the issue of whether the books encouraged critical thinking was a major factor. You Darwinists hypocritically claim to be concerned about quality science education while you oppose critical analysis of evolution in the schools.

Judges are just unable to think outside the box -- like Judge "Jackass" Jones said, the work of judges is "workmanlike." And they should be paid accordingly.

>>>>> you quoted an Onion article as if it wasn't parody while missing its point. <<<<<<

I explained a zillion times why I thought it was not a parody, you profoundly retarded beetlebrain, and the reason is that I knew from my own knowledge that the behaviors in the article were not exaggerations. I could have lied and said that I knew all along that it was a parody, but I saw no reason to lie. The Onion article would have been more appropriate for April Fools' Day.

BTW, I think the word "satire" is more appropriate here than "parody." "Parody" usually refers to an imitation of a specific work or a style of work whereas "satire" is a commentary on society in general. I comment on the meanings of the two terms in articles in my post-label groups about the Ono v. Expelled lawsuit -- the post labels are listed in the sidebar.

BTW, I wonder why a claim of satire or parody is not used more often as a defense against charges of libel or slander.

Tuesday, September 09, 2008 5:27:00 PM  
Blogger William Wallace said...

Regarding warning labels, it is interesting to note that a protestant put a disclaimer in Copernicus 1543 book, "De revolutionibus orbium coelestium", yet, science, somehow, survived. The disclaimer effectively asserted that the theory was a simple mathematical hypothesis. Yet, again, science, somehow survived.

Likewise, in asserting that I.D. is religion with lipstick, so what.

Science will survive.

But even more importantly, God is great.

Tuesday, September 09, 2008 10:15:00 PM  
Anonymous Anonymous said...

LOL

After being schooled on how his own arguments on the Lemon Test proved that what Judge Jones said was entirely correct in another comment thread, Larry is now trying to say that the Lemon Test itself is unconstitutional.

Wednesday, September 10, 2008 9:01:00 AM  
Blogger Larry Fafarman said...

>>>>> After being schooled on how his own arguments on the Lemon Test proved that what Judge Jones said was entirely correct in another comment thread <<<<<<

I don't write this blog to be "schooled," dunghill.

Judge Jones was just plain wrong about the Lemon Test. He relied heavily on the opinion in another evolution disclaimer case, Selman v. Cobb County -- the name "Selman" appears 15 times in the Dover opinion. The judge in Selman ruled that the evolution disclaimer in that case had two "secular purposes" that were not "shams" -- it (1) encouraged critical thinking and (2) reduced offense to the fundies -- and that the evolution disclaimer therefore passed the Lemon Test's "purpose prong." Judge Jones expressed no opinions on whether the Dover evolution disclaimer statement fulfilled either of these two secular purposes.

>>>>>> Larry is now trying to say that the Lemon Test itself is unconstitutional. <<<<<<

I don't expressly say here that I think it is unconstitutional, but I think that it is, as do a lot of other people.

Wednesday, September 10, 2008 4:05:00 PM  

Post a Comment

Links to this post:

Create a Link

<< Home