Originally Posted by Jim in CT
Really?
Freedom of speech - can't threaten someone, can't yell "fire" in a theater, can't possess or create kiddie porn.
This yelling "fire" in a crowded theater thing was a bit of a weak example by Justice Holmes. It is more of a property right thing than a First Amendment issue. You don't have a free speech right to yell anything in a theater, whether it's crowded or not. The owner of the theater can restrict yelling or can allow it.
However Holmes' actual wording was "falsely shouting fire in a crowded theater". Falsley shouting anything dangerous and false, Holmes concluded, is not protected free speech. Shouting something false but not dangerous is protected speech in general but, again, the owner of the theater can ban shouting of any kind in his theater. Holmes' statement might be construed to be an infringement of speech, except it really is not a speech issue as much as it is a freedom issue. That is, freedom has to be mutual. All parties must respect each other's freedom. Directly and intentionally risking the life of someone hearing you, against his will, is not an act of freedom but of license. It is not free speech, but dangerously coercive speech.
And kiddie porn depicting actual children would be infringing their rights. The other kinds, the government may have overstepped.
Freedom of religion - no human sacrifices, no mutilating women's genitalia
The Declaration of Independence is considered to be the reason for the Constitution. The Constitution is considered to be the political/governmental fulfillment of the Declaration's goal. So the Declaration is considered a legal reference. In so much as human sacrifice denies the Declaration's unalienable right to life, religion may freely practice its many other rituals, but, as with most anything else, it cannot kill you. This is not merely a restriction of religion and meant to impede freedom of religion, it is a restriction of most human actions and endeavors which deny unalienable, protected rights. I suppose, the same could be said about the mutilation thing, except if it is consented to (and the consenter is not a minor or one who does not yet have the rational capacity to oppose the mutilation) I would think it would be the right of the consenter to have it.
2nd amendment - all kinds of things you can't buy
Again, you want to expand the federal government's ability to infringe the expressed rights in the bill of rights because of powers it may have regarding non expressed rights or government rights that actually fall within some of its constitutionally enumerated powers. If government can do that, what can it not do? You would make a soundly Progressive Judge. Interpret to satisfy your notion of social justice, or to decide by emotion rather than law.
We agree that what happened is horrible, and we both hope it never happens again. we can leave it at that.
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