Microsoft Trial Judge Based His Break-Up "Remedy" On Flawed Theory, Not Facts

[Jim Choate]

On Tue, 27 Feb 2001, David Stultz wrote:

> Just playing the Devil's Advocate here.
> 
> Are you allowed to go into a theatre and yell, "FIRE!!!" when there is
> none?  Nope.  
> 
> There *are* restrictions on speech.  If MS's "speech" violated somebody's
> rights, that speech can be made illegal.

Speech can't violate rights, only acts against another can. Speech is not
an act against another.

Unconstitutional restrictions on speech that is. If there is a fire and I
don't yell have I commited a crime? If I yell fire and everyone does
nothing was a crime commited?

Let's take your example, it only applies if people are in the theatre AND
they react as if there were a fire. But is it the safety of the theatre
inhabitants we're concerned about? Clearly not since there are more than
sufficient legal and civil recoveries for both the theatre owner and the
patrons if their rights are infringed.

The reality is that causing a riot, via speech or some other mechanism,
isn't protected by the 1st. The argument to forward is a straw-man, they
want to regulate speech when it is convenient to their ends and they hope
nobody notices they're pulling a fast one to do it. So what they have is a
nice tasting argument so that you'll accept A PRIORI restraint on speech.

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