the first amendment in a time of crisis

[Susan Bandes]

Eugene asks for details of anyone being prosecuted for making jokes at the airport. Several years ago one of my students was in this situation. He had accompanied his girlfriend to O'Hare airport to see her off, and when she was asked the standard questions (has anyone given you anything to carry, etc) my student (not one of my best students!) said in what he described as a low voice "only that bomb I gave you."  He was immediately taken into custody by four members of the airport security detail and was charged with a class four felony, despite his protestations that he was "just kidding." He was told that prosecutors had no discretion to bargain his charges down to a misdemeanor. There were, by the way, prominent signs posted in the airport noting that joking about explosives or weapons was a class four felony (I can't recall the exact nature of the statute cited, but the signs are still there--I think Eugene's right that they make reference to false statements).

I, too, was curious about the basis of the prohibition on joking. At the time I called the Illinois ACLU to ask about their attitude toward the statute in issue, and they said they had no interest in challenging it--citing the balance of free speech and public safety.

My student was convicted, but worked out a deal in which he would perform community service (consisting, as I recall, of clerking for the presiding judge) and his conviction would be expunged. As far as I know, he is now practicing law.

Susan Bandes



>>> VOLOKH at mail.law.ucla.edu 04/03/02 20:17 PM >>>
        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