the first amendment in a time of crisis

[Volokh, Eugene]

        I had thought that the theory was that these were false statements
of fact, made with knowledge of their falsehood, and that they therefore
were outside constitutional protection, per Gertz v. Robert Welch.

        In other situations, these statements might be interpreted as jokes
-- whether a statement is a false statement of fact turns not just on its
literal content, but on how listeners are likely to interpret it, which is
why statements in a novel or a play might be seen not as lies but as
fictions.  (There can be libel lawsuits based on novels, of course, but only
if the reader is likely to understand the statement in the novel as being
factual, rather than fictional.)  But in the airport, where speakers know
that the listeners have to take literal claims about bombs seriously, the
statements are properly interpreted as false statements of fact.

        I don't know, though, of any details of people being prosecuted for
these sorts of jokes; if anyone has some specific facts on this, I'd love to
hear them.

        Eugene

> -----Original Message-----
> From: Stephen Siegel [SMTP:ssiegel at CONDOR.DEPAUL.EDU]
> Sent: Wednesday, April 03, 2002 6:00 PM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: the first amendment in a time of crisis
>
> While we are on this subject, I am curious about responses to the fact
> that even before Sept. 11 people were subject to arrest and prosecution
> for making jokes at airport security checkpoints about having bombs or
> other destructive devices in their carry-on luggage etc.  I believe that
> in Chicago this was done under a general statute criminalizing "causing
> a public nuisance."  Because these jokes strike me as somewhat short
> of shouting fire in a crowded theater, I have been puzzeled the basis for
> sanctioning them.
>
> Stephen Siegel
> DePaul University College of Law
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