UPDATED: You Don’t Shout Fire in a Crowded Theater….



The Pink Flamingo does not mind admitting that I sometimes get annoyed with Lindsey for not defending himself against the extreme right and the losertarians who do everything possible to misrepresent and malign everything he says.  He FINALLY defended himself in an NRO interview.

“…When General Petraeus wants us to say something because our troops are at risk, I’m glad to help. I don’t believe that killing someone is an appropriate reaction to burning the Koran, the Bible, or anything else, like I said Sunday; but those who believe that free speech allows you to burn the flag, I disagree. Those who want free speech to allow you to go to a funeral and picket a family, and giving more misery to their lives than they have already suffered, I disagree. And if I could do something about behavior that puts our troops at risk, I would. But in this case, you probably can’t. It’s not about the Koran; it’s about putting our troops at risk. And I think all of us owe the troops the support we’re capable of giving…..


“…Here’s what I fear: I fear that politicians don’t have any problem pushing against laws in the Middle East that are outrageous. It’s perfectly acceptable for me to push back against prosecutions by Islamic countries against people of my faith. And it is perfectly appropriate for me to condemn Koran burning when the general who is in charge of our troops believes that such action would help. I’m not letting Islamists determine what free speech in America is, but I am, as a political leader, trying to respond to the needs of our commander. You’ve got to remember, General Petraeus decided that this was important enough to get on the record as being inappropriate. And I want to be on the record with General Petraeus….Let me tell you, the First Amendment means nothing without people like General Petraeus. I don’t believe that the First Amendment allows you to burn the flag or picket the funeral of a slain service member. I am going to continue to speak out and say that’s wrong. The First Amendment does allow you to express yourself and burn a Koran. I’m sure that’s the law, but I don’t think it’s a responsible use of our First Amendment right.

Where does this end? How many more things are going to happen in the world that is going to incite violence against our service members overseas? I am just asking Americans, don’t do that, please. For God’s sake, no matter how you feel about religion, please keep it within the confines of realizing that we have thousands of people serving our nation, fighting for those First Amendment rights. They’ve got enough problems.

Just be responsible, that’s all I’m trying to say. Burning the Bible would not justify murder, burning the Koran doesn’t justify violence. The people who are committing this violence, I condemn them. That’s what I said Sunday. I don’t think I said anything Sunday that was inconsistent with what General Petraeus said.


“…The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”  Oliver Wendell Holmes, Jr.

It is called an Imminent Lawless Action:

“…”Imminent lawless action” is a term used in the United States Supreme Court case Brandenburg v. Ohio (1969) to define the limits of constitutionally protected speech. The rule overturned the decision of the earlier Schenck v. United States (1917), which had established “clear and present danger” as the constitutional limit for speech. Under the imminent lawless action test, speech is not protected by the First Amendment if the speaker intends to incite a violation of the law that is both imminent and likely. While the precise meaning of “imminent” may be ambiguous in some cases, the court provided later clarification in Hess v. Indiana (1973). In this case, the court found that Hess’s words did not fall outside the limits of protected speech, in part, because his speech “amounted to nothing more than advocacy of illegal action at some indefinite future time,”[1] and therefore did not meet the imminence requirement.

The doctrine states that speech that will cause, or has as its purpose, “imminent lawless action” (such as a riot) does not have constitutional protection. As of 2009, “imminent lawless action” continues to be the test applied in free speech cases….”

Is there any difference between shouting fire in a crowded theater and a jerk burning a Koran just to get attention?  If someone dies when a jerk shouts fire in a crowded theater, should the jerk be held responsible or …. is there a SCOTUS precedent?

“…Schenck v. United States, 249 U.S. 47 (1919), was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to freedom of speech against the draft during World War I. Ultimately, the case established the “clear and present danger” test….”

The beauty of all of this is that Lindsey knows his law.  There are numerous SCOTUS decisions that actually back up Lindsey’s remarks.

“…The “clear and present danger” test was later weakened and the less restrictive “bad tendency” test adopted in Whitney v. California (1927). Justices Holmes and Brandeis shied from this test, but concurred with the final result. Some contend that the “clear and present danger” test was originally just a re-phrasing of the “bad tendency” test. After the repression following the Red Scare, and general disillusion with the war, Holmes sought to prop up free speech with the “clear and present danger” test, a standard intended to clarify and narrow the circumstances in which speech could be restricted. This view has merit considering Holmes never referred to “clear and present danger” in the companion cases of Frohwerk v. United States and Debs v. United States.

Both of these cases were later narrowed by Brandenburg v. Ohio (1969), which replaced the “bad tendency” test with the “imminent lawless action” test….”


I don’t know about you, but I’m getting sick and tired of anti-war losertarians trying to ram their pacifist distaste of anything that reeks of defending the country down our throats.  They are out in force, trying to destroy Lindsey for what he said about Terry Jones.

Is Lindsey Graham evil and must be destroyed or is the far right and the usual losertarian suspects using his words against him?  Is all speech, no matter who is destroyed and no matter how many people killed, protected?  There are limits to what a person can say.  Terry Jones violated those limits and people have been killed. If Jones were some “innocent” minister it would be different, but, knowing what happened with his current actions, Jones is planning an even greater piece of grandstanding which will cost many soldiers their lives.

Sorry, that’s not free speech, that’s murder, cold blooded murder.

The Pink Flamingo must admit that there are times when I wish Lindsey were as intellectually dishonest as the rank and file person in office.  The problem is, he’s not.  He says what he thinks. I just wished he head phrased things differently.

“…“I wish we could find some way to hold people accountable,” said Graham. “Free speech is a great idea, but we’re in a war. During World War II you had limits on what you could do if it inspired the enemy.”…”

The usual Hate Lindsey Graham crowd is using his latest comment to try and censor Lindsey.  Mark Steyn is his usual irrational self over the statement.  Perhaps Steyn should stick to Canadian history if he doesn’t know American history.

There are liberals and conservatives who are at his throat now.  Too bad they don’t bother looking up their history before over-reacting.

“…Harry Reid and Lindsey Graham yesterday both suggested that Congress take unspecified though formal action against the Koran-burning by Florida preacher Terry Jones, which triggered days of violence this week by angry Muslims in Afghanistan. Graham in particular — using the “but” that is the hallmark of all enemies of the First Amendment — said: “Free speech is a great idea, but we’re in a war.” He claimed that “during World War II, we had limits on what you could say if it would inspire the enemy” (I think he was thinking of World War I, when Woodrow Wilson succeeded in all but criminalizing war opposition, including passage of the dangerously broad Espionage Act: the statute Dianne Feinstein and others now want to exploit to prosecute WikiLeaks)…”

I’ve read some rather interesting comments that the US did not do any sort of censorship during World War II and no limits on freedom of speech during WWII, just WWI.  Once again it appears as though the far right and the libertarians and The Pink Flamingo are reading a different version of history.

National Archives

Fortunately, The Pink Flamingo has an expert on the history of World War II on my “staff”.  A quick phone call to my father, a World War II vet, confirmed my historical research.  In fact, as a ship’s first mate, he was a censor.  He was required to read all the mail from the enlisted men, to make sure nothing was said that could be picked up and used against our troops.

The reason – it could get people killed!

He also confirmed that there were indeed limits to “free speech” during World War II to protect our interests and keep our troops safe.  He said that things we would do could be misconstrued by the enemy and used to kill people.  In fact, FDR had broad powers of censorship during the war.

(Of course all of this lead to yet another Herbie Johnston story.  Herbie was my father’s best friend and partner in crime when they were kids, rather like Spanky and Alfalfa.  Trust me, my father looked like Spanky!)

UK Daily Mail

The Pink Flamingo finds it rather amazing that the usual sources can’t wait to denigrate Lindsey, but don’t bother criticizing Terry Jones for being such an arrogant jerk.  It is entirely possible that he is violating the law with what he is doing.  He next plans to put Mohammed on trial.  The man is getting people killed.  He should be tried for murder, not held up as a paragon for freedom of speech.  They are also so against Lindsey, that, instead of checking their history, they automatically damn him, and prove their abject ignorance on the subject.

According to Oliver Wendell Holmes, Jr. there are indeed limits to free speech during a war.  In fact, what Jones is doing, if he is endangering the war effort, as the General says, then he is Schenck v. the United States applies to him.

This has nothing to do with Islam.  It has everything to do with endangering the war effort.  You do not do things that will hurt the war effort and get people killed.  You don’t do lawless things that can get people killed.

It has NOTHING to do with preventing normal freedom of speech, but stopping jerks like Jones from getting people killed.


10 thoughts on “UPDATED: You Don’t Shout Fire in a Crowded Theater….

  1. I have family letters from World War Two. Some of them are stamped across the envelope, “loose lips sink ships” All the mail of servicemen was censored. When my mother received a telegram informing her that my brother was missing in action, she was asked not to divulge the name of his ship or his mission. I lived through this war as a child. I don’t remember any laws restricting free speech, but everything was rationed including gas and food. People were asked not to discuss anything in public which would give assistance to the enemy particularly regarding military assignments and movements.

  2. People have a way of twisting what Lindsey says to suit their own purposes. He didn’t say he wanted to restrict free speech, he said he wished there was a way to hold people accountable. I think many of us feel that way when people do something despicable. Free speech was never intended to be a license to be used for evil purposes. We all have to be responsible for our own actions and we will be held accountable. There is a higher power to which we have to answer.

  3. My father’s Herbie Johnson story is the perfect example of this. He was a in the Navy. Evidently he was so expressive in his letters to his mother that they would literally use scissors on them. Finally he would write something like this:

    How are you?
    I am fine?
    The sky blue.
    The sea is blue.
    The grass is green.
    The sun is hot.
    The water is warm during the day.
    The water is cool at night.

    He was called in and asked why he wrote what he did. Said that was all he could think of without getting in trouble.


  4. Justice Stephen Breyer, Rep. John Boehner, Sen. Harry Reid, and General Petraeus spoke out against the Koran burning, but it was Lindsey they decided to beat up on and he was accused of denying people their 1st Amendment rights. It is really pathetic how much some people hate Lindsey. It is sad too. Because of lies, a very capable senator will probably be primaried out the next time he is up for reelection. It is the dirty work of the far right who are again resorting to defamation of character. Inciting people to violence is not protected under the 1st Amendment, nor is KKK cross burnings.

  5. I just watched this disturbing video. A woman by the name of Ann Barnhardt takes hatred of Lindsey to new heights. She raves like a mad woman. She even burns a Koran. This lady is supposed to be a Catholic, but she has much to learn about life, love and forgiveness. She missed the message of Laetare Sunday. If you haven’t seen this you might want to check it out. Click on “Must See Video – Ann Barnhardt Rebuts.”

  6. I knew there was something else to add to my post on World War Two, but I couldn’t remember it. I found what I was looking for. So, in case anybody is interested, here it is. Just before entering World War Two, congress passed the Smith Act of 1940, which limited freedom of speech and expression. It made it a crime to distribute written materials or make speeches in a way to cause insubordination or refusal of duty in the armed forces. It also made it a crime to teach or advocate the overthrow of the government by force. Lindsey is correct in saying there were limits on free speech in World War Two. His critics, out to malign him, are the ones showing their ignorance. In addition to this Act, newspapers and news were sometimes censored in order to protect the morale of our troops. There was also forced internment of Japanese Americans.

  7. Thank you!

    That’s what my father said. He was trying to remember what the law was that was passed to do just that.

    Don’t get me started on the historical ignorance of the far right and libertarians!


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