Is it constitutional to shout "fire" when there's a fire?
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: Selman v. Cobb County