Far too often, people cite Holmes’s bit about crying fire in a crowded theater as an example of unprotected speech–and they usually cite it for entirely wrong reasons.
But what about falsely crying “Bingo” in a crowded bingo hall? Is it constitutionally protected speech?
From my former Commonwealth of Kentucky, some guy walked into a local bing hall and falsely yelled “Bingo!” Not a good idea.
“This caused the hall to quit operating since they thought someone had won,” Webster wrote on his citation. “This delayed the game by several minutes and caused alarm to patrons.”
Webster said the crowd of mostly elderly women did not take kindly to Whaley’s bingo call.
“At first, everybody started moaning and groaning when they thought they’d lost,” Webster said. “When they realized it wasn’t a real bingo, they started hooting and hollering and yelling and cussing. People take their bingo very seriously.”
Had Whaley apologized for his actions, Webster said he probably would have sent him on his way with a warning. “But he refused to say he was sorry,” Webster said.
So of course he was cited for “Second-degree disorderly conduct.” And of course his conduct was analogized to crying fire in a crowded theater.
“He seemed to think he could say whatever he wanted because it was a public building. I tried to explain that that’s not the case. Just because it’s a public building doesn’t give you the right to run into a theater and yell ‘fire.’ You can’t go into a ballpark and yell ‘out,’ because people could stop the game.”
But the Judge’s sentence is likely unconstitutional.
When Whaley appeared in Kenton District Court last week, the judge ordered Whaley: “Do not say the word ‘bingo’ for six months.”
Think Progress notes that this doesn’t come close to violating Schenck, and the “clear and present danger” test.
As comical as it may be, sentencing someone to not utter the word “bingo” is likely a violation of the First Amendment.
The 1919 Supreme Court case Schenck v. U.S. introduced the “clear and present danger” test, which allows punishment for speech that would knowingly cause a panic, such as shouting “fire” in a crowded theater (this test has also been largely superseded by more speech-protective decisions). But yelling “bingo” in a bingo hall hardly lives up to the standard. Nobody flees for their life when they think they’ve lost the whimsical game of chance.
Bingo players may consider Whaley a jerk, but even jerks have constitutional rights.
The judge’s order seems to be a form of unlawful prior restraint, without any imminent harm. What a silly ruling.