Writing Supreme Court Opinions.

Discussion in 'Politics' started by Jimbee68, Jun 6, 2024.

  1. Jimbee68

    Jimbee68 Member

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    Oliver Wendell Holmes once famously said that the most stringent protection of the First Amendment would not protect a man from falsely shouting fire in a theater and causing a panic. He was saying this in Schenck v. United States, BTW. But that is not correct. At least when you're talking about the states. I learned, and my professor said in my 1997 political science class, it actually the the First Amendment as applied thru the substantive due process clause of the Fourteenth Amendment that applies to the states. The Fourteenth Amendment reads "nor shall any State deprive any person of life, liberty, or property, without due process of law".

    More correctly, if Holmes was referring of a state, he would say, "the most stringent protection of the First-Amendment-as-applied-thru-the-substantive-due-process-clause-of-the-Fourteenth-Amendment would not protect a man from falsely shouting fire in a theater and causing a panic". But that just doesn't sound right. And your hand gets tired writing that over and over again. Especially in a particularly long opinion. So he, and other justices, usually write "First Amendment". And the lower courts will know what they mean. And you know, Supreme Court opinions, like Holmes' in Schenck become part of history. And it just sounds better that way. Doesn't it?

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