Sometimes, there really is a fire

Whenever a free-speech controversy bubbles up, you can always count on apologists for censorship to declare that “there’s no right to shout fire in a crowded theatre.”

Ken at Popehat, in an absolutely devastating post, explains where that phrase comes from, and it’s not pretty:

In her Los Angeles Times opinion piece justifying prosecution of the author of the “Innocence of Muslims” video on YouTube, Sarah Chayes opens exactly the way I’ve come to expect:

“In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. ‘The most stringent protection,’ he wrote on behalf of a unanimous court, ‘would not protect a man in falsely shouting fire in a theater and causing a panic.'”

Holmes’ famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the “fire in a crowded theater” quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying “well, some speech is protected by the First Amendment” is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don’t have to rely on a 90-year-old rhetorical flourish to support your argument.

After Holmes’ opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that “obstructed” conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the “fire in a theater” quote that people so love to brandish to justify censorship.

Sarah Chayes’ L.A. Times column demonstrates how Holmes’ rhetorical dodges can be employed in support of unprincipled and broad calls for censorship. Holmes blurred the line between what the government should be able to prevent (speakers urging listeners to imminent lawbreaking, like riots) and what it would merely like to prevent (loss of support for the war). Similarly, Chayes and her ilk blur the line between what the government should be able to prevent (speech intended to incite, and likely to incite, people to imminent lawbreaking), what it would like to prevent (violence by mobs, whether actually motivated by insulting videos or whether manipulated by forces using those videos) and what it should not be able to prevent (expressions of opinion which might offend someone and be used as an excuse for violence). Holmes accepted you shouldn’t be permitted to make the populace doubt the war efforts in wartime; Chayes and her ilk accept you shouldn’t be able to say things that can be used by distant mobs as justifications for rioting.

I suspect many of the people who want “Innocence of Muslims” banned marched enthusiastically against the wars in Iraq or Afghanistan. Whether they’re ignorant of what Justice Holmes meant or whether they’ve rationalized it somehow, only God knows.

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About Damian P.

Lawyer with Bedford Law, Bedford, Nova Scotia.
This entry was posted in Constitutional Law, Freedom of Expression. Bookmark the permalink.

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