First Amendment limits: Is ‘bingo’ the new ‘fire’?

National Constitution Center

18-year-old Austin Whaley stopped into a Kentucky bingo parlor packed with mostly elderly bingo players when he yelled the word that caused pandemonium: “BINGO!”

According to news reports of the incident, the game was stopped for several minutes to verify the bingo claim, and when the false utterance was discovered, it caused an uproar. After he refused to apologize, Whaley was arrested for disorderly conduct. As punishment, he received no jail time but was ordered not to utter the word bingo for six months. And while, after his brush with the law, Whaley probably never wants to say the word “bingo” again as long as he lives, it makes those of us who love the Constitution (if not the game of bingo) wonder: Is that a violation of his right to free speech? Like most interpretations of the Constitution, First Amendment protection of free speech can be understood by taking a look at Supreme Court decisions on the matter.

View photo

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Source: Wikimedia Commons.

Source: Wikimedia Commons.

One of the seminal cases to the understanding of free speech rights involved a man named Charles Schenck, who was chairman of the U.S. Socialist Party. Schenck was staunchly opposed to the United States’ involvement in World War I. He printed up 15,000 leaflets opposing the draft, advising people to “Assert Your Rights” and cautioning them not to submit to intimidation. For this, he was convicted of violating the Espionage Act of 1917, one of the most controversial laws criminalizing conduct during wartime and creating penalties against anyone who “shall willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States.” Schenck appealed his conviction to the Supreme Court, claiming that it violated his First Amendment right to freedom of speech.

The Supreme Court in Schenck v. U.S. unanimously upheld Schenck’s conviction, saying that the United States government during a time of war had the right to limit speech that it said would lead to an imminent risk of harm. Justice Oliver Wendell Holmes, in what has become the most widely known exception to the right to freedom of speech, wrote:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

Over time, the Supreme Court has modified slightly the “clear and present danger” test first articulated by Justice Holmes. In Brandenburg v. Ohio, a 1969 case involving the arrest of members of the Ku Klux Klan, the court found that to be illegal, speech must have the intent and the likelihood of causing imminent violence.

And so we must ask: How much violence is likely to occur if one gets between a bingo player and her game? Should someone have the right to falsely shout “Bingo” in a parlor full of people who are likely to become furious when they realize that you’ve made a mockery of their game? Whaley may have been judged not just by the word he uttered but by the fact that he was not, apparently, at the bingo hall for any reason other than to cause a disruption. But had he chosen to fight his arrest on free speech grounds, the prosecutor would likely have been hard-pressed to prove that as infuriated as the elderly bingo patrons might have been, Whaley’s actions had neither the intent, nor the likelihood, of causing imminent violence.

Further Reading

  • Brandenburg v. Ohio, 395 U.S. 444 (1969). Read online at oyez.org.
  • Schenck v. U.S. 249 U.S. 47 (1917). Read online at oyez.org

Amy E. Feldman is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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