Biden mangles Constitution with out-of-date quote

President Biden addresses Congress (Getty Images via ABC)

Joe Biden graduated law school 76th out of 85 students in 1968. Maybe he hasn’t bothered to keep up with the status of jurisprudence since.

During his remarks to a joint session of Congress Wednesday evening, he declared, “And no amendment to the Constitution is absolute. You can’t yell ‘Fire!’ in a crowded theater.”

Maybe those words with improvised on the fly, because they do not appear in his prepared text.

Yes, in 1919 in the case of Schenck v. U.S. Justice Oliver Wendell Holmes declared, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

President Biden said nearly the same thing in a Rose Garden speech in April 2021.

And just what was tantamount to “falsely shouting fire” and constituted what was labeled the “clear and present danger” test?

Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance against the World War I Selective Service Act — the draft. His pamphlet argued that conscription was tantamount to indentured servitude, which was barred by the Thirteenth Amendment following the Civil War. He was making a legal argument, Holmes compared that to causing a panic.

Even Holmes himself backed off this stance in a later case:

“Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

This was pointed out in the case of Brandenburg v. Ohio, which essentially overturned Schenck and established a much stricter free speech standard. The court held, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Imminent lawless action.

Of course, that case was concluded in 1969, a year after Biden finished low in his graduating law school class. Perhaps he’s not bothered to keep up since.

26 comments on “Biden mangles Constitution with out-of-date quote

  1. NYPete says:

    Oh, Ok. So I can yell fire in a crowed theatre.
    Nice to know.

  2. Anonymous says:

    the Constitution says I can do whatever I want.

  3. NYPete says:

    I mean, I suppose to Thomas Mitchell, causing a deadly stampede by shouting fire in a crowded theatre does not constitute “imminent lawless action.” How stupid of President Biden, who didn’t do very well in law school fifty years ago, to think otherwise.

  4. Is arguing that the draft is unconstitutional tantamount to shouting fire in a crowded theater?

  5. NYPete says:

    Certainly not. But try as I might, I cannot find the passage in President Biden’s speech in which he claims that Schenck v. United States remains good law.
    Tell me, though: do you agree that the First Amendment does not prohibit the criminal prosecution of someone who causes a deadly stampede by shouting fire in a crowded theatre?

  6. Athos says:

    “do you agree that the First Amendment does not prohibit the criminal prosecution of someone who causes a deadly stampede by shouting fire in a crowded theatre?” When did that happen, petey? Can you provide the particulars of an actual case where this happened?

    In reality, this is another case for making Woodrow Wilson the most anti American President, ever.

    And tell the truth, petey. You didn’t watch President Venal House Plants’ speech, did you? (you can tell us…..you’d be in good company, huh?) When Biden says “No amendment to the constitution is absolute” Does he mean the 13th? Or maybe the 19th?

    Or how about THE 16TH AMENDMENT? You’re a big stickler for the exact language of words a person uses. Does Joe have plans to put people back into slavery? Or prevent women from voting?

    Cause that sure sounds like what he said, right petey???

  7. I actually dozed off during the speech.

  8. NYPete says:

    Nope, didn’t watch the speech either. Had work to do. Anyway, he isn’t a very compelling orator.
    I am pleased, however, to see that no one here wants to disagree with President Biden that the First Amendment does not prohibit the criminal prosecution of people who should fire in crowded theatres.

  9. No, I disagree that the quote was at all applicable the case at hand, and was therefore entirely inappropriate in the Biden speech.

  10. Anonymous says:

    Biden was on the right side of constitutional jurisprudence that has consistently held since the beginning of the country that no amendment is absolute.

    Common sense Joe is what the country has been begging for for the last 4 years. Which is why the country overwhelmingly approves of what he has done, and is proposing to do.

  11. Athos says:

    Anny-mouse, explain why the 13th amendment isn’t absolute. I’ll just sit right here and wait for your pearls of wisdom……

    does anyone else question why the biggest presidential vote getter EVER (over 81 MILLION VOTES, ALMOST 12 MILLION MORE THAT OBAMA IN 2008!!) and yet drew the least number of people watching his SOTU speech Wednesday night???? Trump drew 20 million more his first time out.

  12. Anonymous says:

    I love that we don’t have to play by those Marquis of Queensbury Rules no more don’t you atholes?

    Say it with me, President Joe Biden.

    Makes me happy every single day.

  13. Athos says:

    Still waiting for your explanation why the 13th amendment is no longer absolute, Anny.

    Otherwise, did you say something?

  14. Athos says:

    Did anyone else notice how the SOTU speech started out surreal? In a chamber that easily holds 1,000, there were less than 200 MASK WEARING BUFFOONS that have ALL been vaccinated, INCLUDING VHP (venal house plant)!!! Dems and Repubs.

    What up with that, Beauregard?

  15. Athos says:

    Rant time…. Vaccinated leader of the free world wears a mask. But what’s personally worse, is our pimple of a governor (SAY HIS NAME – SISSYLICK), who’s ANOTHER vaccinated pol, wearing a mask telling casino workers to get vaccinate (or we’re NEVER going to open up).

    What is WRONG with these power mad idiots? Hey Sissylick, why don’t you try to copy a REAL leader and emulate Ron DeSantis or Greg Abbot???

    I am sick and tired of these fear pornographers. They’ve scared people into NEVER losing the mask. Bubble World People. They should be ashamed!

    Thanks for letting me rant, Tom

  16. Anonymous says:

    Explanation? Here’s one that I’m very happy to have learned from the moronic orange stain that desecrated this country for the last 4 years:

    “The Constitution says I get to do whatever I want”

    Say it with me “President Biden” loud and proud.

  17. Athos says:

    So you agree with the Venal House Plant (Joe Biden-Harris) that slavery and/or indentured servitude SHOULD exist in the United States?? Interesting…. but not all that surprising considering the Dems fought for the South in the war between the states, the Dems set up Jim Crow laws governing the south, the Dems were for segregation before (and now it seems!) and the Dems dehumanize people by giving them money for nothing thus robbing them of their dignity (LBJ and the war on poverty.. he provided a very telling quote if you’d care to look for it…but then again, you probably already know it and agree with it, huh?)

    It’s probably a good thing your anonymous, anny, otherwise you may get doxed for being a blatant racist. And wouldn’t that be a shame

  18. Anonymous says:

    Remember the “We finally got a guy that don’t play by the Marquis of Queenbury Rules?”

    Put that in your pipe and smoke it whenever you question anything this administration does.

    then say it with me loud and proud “President Joe Biden”.

  19. Anonymous says:

    Now there’s something we haven’t seen in more than 4 years; 2/3’rds of the country optimistic about the future.

    Say it with me loud and proud “President Joe Biden” Sure sounds good don’t it?

    “Nearly two-thirds of Americans are optimistic about the future with President Joe Biden as he reached his first 100 days in office, according to a new ABC News Poll.

    The poll found that 64 percent of citizens are happy with the direction the country is going. That compares to the 36 percent who still are pessimistic about the notion.”

    https://thehill.com/homenews/administration/551374-almost-two-third-optimistic-with-nations-future-poll

    Let’s put atholes in the pessimistic category shall we?

    Owning cons

  20. Athos says:

    You’re a strange creature, anny, no doubt about it. I saw an interesting poll from CBS News right after VHP’s speech to Congress last Wednesday night. Seems 85% agreed with Joe! But then, when you dig down to the numbers, there were only 169 Republicans out of the 1000 people sampled!

    Surprise Surprise Surprise, Sgt Carter!

    But I’m sure ABC would never stack their polls like that, would they?

    Would they??

  21. Athos says:

    Just for your edification (and education) it happens to be spelled ” Marquess of Queensberry Rules”

    I’m sure it’s just an honest mistake.

  22. Anonymous says:

    “Athos says:
    October 31, 2018 at 7:09 pm

    Here’s what good old anny, (or is it deleted?) has no intention of acknowledging. President Trump (God, that sounds so good) has no intention of following the Marquis of Queensbury rules you anarchists have counted on conservatives obeying.”

    The “great” thing about you people on the right is that you just say stuff with no tie to the truth or any integrity.

  23. Athos says:

    Anny, you were quoting me? I’m touched! I had no idea you were so devoted to my legacy!

    So it seems it WAS an honest mistake,(made by a devoted fan)!

  24. Anonymous says:

    How stupid can you be was never intended to be a personal challenge aholes

  25. Athos says:

    “I’d like to sell that man a comma and a period, Pat. And then I’ll solve the puzzle!”

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