In The Atlantic, Ken White strongly urges pro-free-speech advocates to avoid using some arguments that have been bandied around recently:
What speech should be protected by the First Amendment is open to debate. Americans can, and should, argue about what the law ought to be. That’s what free people do. But while we’re all entitled to our own opinions, we’re not entitled to our own facts, even in 2019. In fact, the First Amendment is broad, robust, aggressively and consistently protected by the Supreme Court, and not subject to the many exceptions and qualifications that commentators seek to graft upon it. The majority of contemptible, bigoted speech is protected.
If you’ve read op-eds about free speech in America, or listened to talking heads on the news, you’ve almost certainly encountered empty, misleading, or simply false tropes about the First Amendment. Those tired tropes are barriers to serious discussions about free speech. Any useful discussion of what the law should be must be informed by an accurate view of what the law is.
Supreme Court Justice Oliver Wendell Holmes, Jr.
Photo by Harris & Ewing via Wikimedia Commons.
[…]“This speech isn’t protected, because you can’t shout ‘Fire!’ in a crowded theater.”
This line, though ubiquitous, is just another way to convey that “not all speech is protected by the First Amendment.” As an argument, it is just as useless.
But the phrase is not just empty. It’s also a historically ignorant way to convey the point. It dates back to a 1919 Supreme Court decision allowing the imprisonment of Charles Schenck for urging resistance to the draft in World War I. Justice Oliver Wendell Holmes Jr. wrote that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This decision led to a series of cases broadly endorsing the government’s ability to suppress speech that questioned official policy. But for more than half a century Schenck has unequivocally and universally been acknowledged as bad law.
Holmes himself repented of the decision — though he continued to indulge his taste for pithy phrases with lines like “Three generations of imbeciles are enough” to justify forcible government sterilization of the handicapped.
So when you smugly drop “You can’t shout ‘Fire!’ in a crowded theater” in a First Amendment debate, you’re misquoting an empty rhetorical device uttered by a career totalitarian in a long-overturned case about jailing draft protesters. This is not persuasive or helpful.
