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Protected Speech

September 02, 1990

Re Marshal Alan Phillips' Aug. 26 letter on limits of freedom of speech: I'm tired of letter writers misusing First Amendment doctrine to claim that speech they don't like isn't necessarily protected, citing specific exceptions that are wholly irrelevant.

Mr. Phillips first trots out Justice Holmes' famous statement about how one may not falsely shout fire in a theater. This may symbolically mean freedom of speech is not absolute, but only a straw man would claim otherwise. Literally, it has no bearing on the work of artists such as Sam Kinison, Andrew Dice Clay, Public Enemy or Guns N' Roses, unless, I suppose, their words make average people panic and trample each other.

As for obscenity, none of those listed above come close. At the very least, they don't appeal to prurient interest--their appeal is musical, political and/or comedic--and therefore cannot be legally obscene.

Finally, there is the refuge of the desperate, "fighting words." The fighting-words doctrine applies only in face-to-face confrontations where the speech is directed toward a particular individual. No recording or live act would fall within this exception.

STEVEN KURTZ

Los Angeles

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