From a young age, the media and various political figures have reinforced the importance of freedom of speech, an idea which is said to be protected by the First Amendment. Although everyone has the right to express themselves, there are a few limits that hinder one’s full speech. These include slander/libel, clear and present danger/imminent lawless action, fighting words, commercial speech, obscenity, and prior restraint. In this piece, the focus will be on the clear and present danger/imminent lawless action part of these restrictions. In layman’s terms, this limitation is speech which poses a danger to national security or to individuals. A prime example is falsely yelling “fire” in a crowded theater. This saying was coined by Justice Holmes Jr. in the United States Supreme Court case Schenck v. United States in 1919. During World War I, socialites Charles Schenck and Elizabeth Baer declared that the draft violated the Thirteenth Amendment, which prohibited involuntary servitude. Schenck was charged with conspiracy to violate the Espionage Act of 1917 by attempting to cause disobedience in the military and to deter recruitment. After both were convicted of violating this law, they appealed that this act disobeyed the First Amendment. In the end, the Court refused to falter and stated that the Espionage Act of 1917 did not breach the First Amendment and supported Congress’ wartime authority. Holmes concluded that the First Amendment does not protect speech that aims at creating clear and present danger and could be punished. Similarly to falsely yelling “fire” in a crowded theater, people have pushed the boundaries of the protection guaranteed by the First Amendment by deceitfully proclaiming “bomb” in an airport or on an airplane. In a case close to the hearts of Wisconsinites, the Green Bay Packers’ wide receiver Trevor Davis was arrested in early April of 2018 at the Los Angeles International Airport for making a bomb threat. He turned to his companion while checking in at the Hawaiian Airlines ticket counter and stated, “Yeah, did you pack the explosives?” after being asked if they were carrying any unapproved items. The authorities arrested Davis on a misdemeanor charge of making a bomb threat, and he was put in the Los Angeles jail with a $15,000 bail. For similar cases, check out these stories: the first story and second story. Analogous cases are occurring across America at a frequent rate. Since these statements technically fall into the freedom of speech category, should the First Amendment protect these specific declarations?
To that question, I can confidently assert that the limitations on clear and present danger/imminent lawless action should stand in situations similar to falsely yelling bomb on an airplane or in an airport. A large opposition to this opinion stems from the fact that each case differs from the next. In just the examples used in this paper, one clearly stated “bomb” while the other “joked” about explosives. Some may proclaim that it is sometimes an obvious joke and should not be taken seriously. Things like “honey, did you pack the explosives?” are “obviously” meant to be taken lightly and should not receive such fierce punishment. My response is the following: in order to maintain full public safety, authorities should air on the side of caution and treat each event as if it were an actual threat. There needs to be a set program in place in the event of a true attack. After the multiple terrorist attacks that the United States has unfortunately suffered- namely 9/11- the states can never be too cautious. If the protocols become unregulated, a “silly” threat can turn into the death of dozens of people. If you are knowingly using resources, time, and the effort of professional personnel for a “joke”, you should have to pay the repercussions of it. So, why do people do it? Are they trying to crack a smile from passersby or is there a deeper explanation? As Edgar Allen Poe affectionally called it, “the imp of the perverse” is the human urge to do exactly the thing that you should not do: jump off a bridge, scream in a quiet lecture, and -shocker- falsely yell “bomb” in an airport. A handful of psychologists suspect that the urge may exist to help us rehearse how we deal with fear. In fact, it is quite common. Research confirms that up to 90 percent of people without a diagnosed mental illness experience these “intrusive thoughts”. In a study conducted by a team from Florida State University’s psychology department, psychological doctoral students surveyed 431 college students and asked them about the urge to jump from high places and thoughts of suicide. To read more about this study and its findings, visit this link. The conclusions were similar to those expressed previously. Although this explains the urge to slip in an illegal statement while conversing, it does not excuse it. The fact is, hundreds of thousands of people can attest to such thoughts, but you do not see hundreds of thousands of people acting on those urges. In conclusion, the First Amendment should continue to not protect clear and present danger/imminent lawless action assertions similar to falsely yelling “bomb” in an airport.
Asp, David. “The First Amendment Encyclopedia.” Virginia and Kentucky Resolutions of 1798, www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917.
Burkeman, Oliver. “Here’s Some Dynamite Advice: Don’t Make Bomb Jokes in Airports | Oliver Burkeman.” The Guardian, Guardian News and Media, 27 Nov. 2012, www.theguardian.com/commentisfree/oliver-burkemans-blog/2012/nov/27/dynamite-advice-bomb-jokes-airports.
Ikem, Chinelo Nkechi. “There’s a Name for That: The Imp of the Perverse.” Pacific Standard, Pacific Standard, 6 June 2018, psmag.com/magazine/imp-of-the-perverse.
News, ABC, director. Caught on Tape: Passenger Screams Bomb on Plane. YouTube, YouTube, 23 Nov. 2013, www.youtube.com/watch?v=psBjBYDbWfI.
Schad, Tom. “Packers WR Trevor Davis Arrested for Making Bomb Joke at Los Angeles Airport.” USA Today, Gannett Satellite Information Network, 9 Apr. 2018, www.usatoday.com/story/sports/nfl/packers/2018/04/09/packers-trevor-davis-arrested-making-bomb-joke-los-angeles-airport/498896002/.
“Schenck v. United States.” Oyez, 22 Feb. 2019, www.oyez.org/cases/1900-1940/249us47.
“That Weird Urge to Jump off a Bridge, Explained.” NBCNews.com, NBCUniversal News Group, 13 Mar. 2012, bodyodd.nbcnews.com/_news/2012/03/13/10657767-that-weird-urge-to-jump-off-a-bridge-explained?lite.
The Associated Press. “Miami Airport Bomb Threat Nets Man 3 Years’ Probation, Fine.” AP Regional State Report – Florida, Associated Press DBA Press Association, 17 Mar. 2015. EBSCOhost, search.ebscohost.com/login.aspx?direct=true&db=n5h&AN=AP29a4e90764154b7896cf482edffcaf43&site=ehost-live&scope=site
Volokh, Eugene. “‘Shouting Fire in a Crowded Theater.’” The Washington Post, WP Company, 11 May 2015, www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/11/shouting-fire-in-a-crowded-theater/?noredirect=on&utm_term=.57cd86bb11dc.