Three Generations of a Hackneyed Apologia for Censorship Are Enough

Law

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.

Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech. This post is not about fisking Sarah Chayes; her column deserves it, but I will leave it to another time. This post is about putting the Holmes quote in context, and explaining why it adds nothing to a First Amendment debate.

Holmes' Full-Throated Approval For Suppression of Wartime Dissent

Holmes' famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority.

The three cases in question arose from socialist criticism of conscription during World War One. The criticism at issue, to modern tastes, was a clearly protected and rather mild expression of opinion. Here's what got Socialist Party of America chair Charles Schenck prosecuted and imprisoned under the Espionage Act:

The document in question [a pamphlet Schenck helped produce], upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on:

"If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."

It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country."

Holmes, writing for a unanimous Supreme Court, affirmed Schenck's conviction on the theory that this expression could be punished in wartime even though it merely urged "peaceful measures such as a petition for the repeal" of conscription, on the theory that the government could suppress speech that might interfere with the draft. This led to Holmes' oft-quoted phrase:

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.

The two companion cases from 1919 are quite similar. In Debs v. United States, Holmes once again delivered the opinion of a unanimous Supreme Court, affirming a criminal conviction under the Espionage Act. Famed socialist Eugene V. Debs was sentenced to ten years in prison for a speech that Holmes summarized at length (are there any short socialist speeches?) in support of the basis for Debs' conviction. It's a lot of text — skip it if you will — but I quote it to demonstrate that Holmes implied that even the most generic phrases of criticism of the government can be punished if they are part of an effort to "obstruct" conscription:

The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the [249 U.S. 211, 213] more general utterances was to encourage those present to obstruct the recruiting service and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class- these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft. Ruthenberg v. United States, 245 U.S. 480 , 38 Sup. Ct. 168. He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.

After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O'Hare, convicted of obstructing the enlistment service, praised her for her loyalty to Socialism and otherwise, and said that she was convicted on false testimony, under a ruling that would seem incredible to him if he had not had some experience with a Federal Court. We mention this passage simply for its connection with evidence put in at the trial. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles-that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring [249 U.S. 211, 214] peace. 'You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary.' The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises, and they sent her to the penitentiary for ten years; that she had said no more than the speaker had said that afternoon; that if she was guilty so was he, and that he would not be cowardly enough to plead his innocence; but that her message that opened the eyes of the people must be suppressed, and so after a mock trial before a packed jury and a corporation tool on the bench, she was sent to the penitentiary for ten years.

There followed personal experiences and illustrations of the growth of Socialism, a glorification of minorities, and a prophecy of the success of the international Socialist crusade, with the interjection that 'you need to know that you are fit for something better than slavery and cannon fodder.' The rest of the discourse had only the indirect though not necessarily ineffective bearing on the offences alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, &c., with the implication running through it all that the working men are not concerned in the war, and a final exhortation, 'Don't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves.' The defendant addressed the jury himself, and while contending that his speech did not warrant the charges said, 'I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.' The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether incidental [249 U.S. 211, 215] or not does not matter, was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief.

Holmes dismisses Debs' free speech defense with a passing reference to the matter being resolved in Schenck.

Debs continues a crucial and dangerous rhetorical dodge from Schenck — the deliberate obfuscation of what dangers, exactly, the government has the power to prevent. Holmes writes:

Its first recommendation was, 'continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.' Evidence that the defendant accepted this view and this declaration of his duties at the time that he made his speech is evidence that if in that speech he used words tending to obstruct the recruiting service he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books. We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service , &c., and unless the defendant had the specific intent to do so in his mind.

In neither Schenck nor Debs does Holmes offer more specifics — like "the government has the power to prohibit ends like anti-draft riots or refusals to report for duty." Rather, Holmes uses deliberately vague language susceptible to the interpretation that the government has the power to prohibit speech that might lead people to demonstrate against, vote against, and petition their government to alter conscription. This is a calculated blurring of the line between what the government wants to avoid (a drop in support for the war and the draft) and what it should have the power to prevent (active defiance of the law, on the one hand, versus criticism of the law, on the other).

Frohwerk v. United States is the last of the shameful 1919 trilogy. Frohwerk was convicted under the Espionage Act for conspiring to produce a local newspaper critical of the war and of conscription. Once again Holmes wrote for the court, identifying the language that led to a ten-year sentence for Frohwerk. Once again, the quote is long, but important to establishing the breadth of speech targeted:

The first begins by declaring it a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great trusts, and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally; a matter discussed at length in his voluminous brief, on the ground that before its decision to the contrary the Solicitor General misled this Court as to the law. Later, on August 3, came discussion of the causes of the war, laying it to the administration and saying 'that a few men and corporations might amass unprecedented fortunes we sold our honor, our very soul' with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes 'We say therefore, cease firing.'

Next, on August 10, after deploring 'the draft riots in Oklahoma and elsewhere' in language that might be taken to convey an innuendo of a different sort, it is said that the previous talk about legal remedies is all very well for those who are past the draft age and have no boys to be drafted, and the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching the conviction that this is but a war to protect some rich men's money. [249 U.S. 204, 208] Who then, it is asked, will pronounce a verdict of guilty upon him if he stops reasoning and follows the first impulse of nature: self-preservation; and further, whether, while technically he is wrong in his resistance, he is not more sinned against than sinning; and yet again whether the guilt of those who voted the unnatural sacrifice is not greater than the wrong of those who now seek to escape by illadvised resistance. On August 17 there is quoted and applied to our own situation a remark to the effect that when rulers scheme to use it for their own aggrandizement loyalty serves to perpetuate wrong. On August 31 with more of the usual discourse, it is said that the sooner the public wakes up to the fact that we are led and ruled by England, the better; that our sons, our taxes and our sacrifices are only in the interest of England. On September 28 there is a sneering contrast between Lord Northcliffe and other Englishmen spending many hundreds of thousands of dollars here to drag us into the war and Count Bernstorff spending a few thousand to maintain peace between his own country and us. Later follow some compliments to Germany and a statement that the Central powers are carrying on a defensive war. There is much more to the general effect that we are in the wrong and are giving false and hypocritical reasons for our course, but the foregoing is enough to indicate the kind of matter with which we have to deal.

Next, in stark contrast to what he would say a year later, Holmes' minimized and dismissed the argument that there was insufficient evidence to show these words had any actual tendency to promote lawlessness:

It does not appear that there was any special effort to reach men who were subject to the draft; and if the evidence should show that the defendant was a poor man, turning out copy for Gleeser, his employer, at less than a day laborer's pay, for Gleeser to use or reject as he saw fit, in a newspaper of small circulation, there would be a natural in [249 U.S. 204, 209] clination to test every question of law to be found in the record very thoroughly before upholding the very severe penalty imposed. But we must take the case on the record as it is, and on that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out. Small compensation would not exonerate the defendant if it were found that he expected the result, even if pay were his chief desire. When we consider that we do not know how strong the Government's evidence may have been we find ourselves unable to say that the articles could not furnish a basis for a conviction upon the first count at least. We pass therefore to the other points that are raised.

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.

Holmes' Repentance — Too Little, Too Late

Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. In Abrams v. United States, the Supreme Court upheld the Espionage Act convictions of Russian immigrants. Though the defendants' publications included words that came significantly closer to advocating lawlessness than the Schenck defendants, what is notable is the breadth of power the majority confers upon the government to suppress wartime dissent:

The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.

Holmes, a regretful Dr. Frankenstein struggling against his creation, dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking:

I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk and Debs, 249 U.S. 47, 204, 211, were rightly decided. I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.

But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.

What follows is one of Holmes' most famous quotes defending freedom of expression, one that marks him unjustifiably and undeservedly in public memory as a champion of free speech.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Yeah. Now you tell us.

Schafer v. United States is more of the same. It involved German-language newspapers in Philadelphia that opposed the war and mocked American efforts. Quoth the majority, advocating a standard that's little more than "this was bad for morale":

To them its derisive contempt may have been truly descriptive of American feebleness and inability to combat Germany's prowess, and thereby chill and check the ardency of patriotism and make it despair of success, and in hopelessness relax energy both in preparation and action. If it and the other articles, which we shall presently refer to, [251 U.S. 466, 479] had not that purpose, what purpose had they? Were they the mere expression of peevish discontent, aimless, vapid, and innocuous? We cannot so conclude. We must take them at their word, as the jury did, and ascribe to them a more active and sinister purpose. They were the publications of a newspaper, deliberately prepared, systematic, always of the same trend, more specific in some instances, it may be, than in others. Their effect or the persons affected could not be shown, nor was it necessary. The tendency of the articles and their efficacy were enough for offense-their 'intent' and 'attempt,' for those are the words of the law-and to have required more would have made the law useless. It was passed in precaution. The incidence of its violation might not be immediately seen, evil appearing only in disaster, the result of the disloyalty engendered and the spirit of mutiny.

. . . .

The purpose is manifest, however the statements of the article may be estimated, whether as criminal means, violations of law, or the exercise of free speech and of the press, [251 U.S. 466, 481] and its statements were deliberate and willfully false; the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort. In final comment we may say that the article in effect justified the German aggressions.

This time Holmes joined Justice Brandeis, who began laying the groundwork for what would later become a principled application of the "clear and present danger" test.

The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive treason. 2 To hold that such harmless additions [251 U.S. 466, 494] to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing [251 U.S. 466, 495] of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

Anyone who can reconcile that with the Schenck cases is a better lawyer than I.

Finally, Pierce v. United States concerned Espionage Act convictions premised on anti-war leaflets which, the majority accepted, obstructed the war and contained actionable false statements about the war. In his opinion — which Holmes joined — Justice Brandeis questioned whether the evidence sufficed to show that the defendants knew that statements in the leaflets were false, questioned whether some of the challenged statements were fact or opinion (including, notably, discussions of the reasons for the war, exactly the sort of discussions found outside of First Amendment protection in the Schenck trilogy), and questioned the proof that the defendant intended to obstruct the war by distributing the leaflets. It's a rigorous examination of the government's theory of the case and justifications for censorship; it's also utterly irreconcilable with what Holmes wrote just months before, in which he broadly stated that intent to obstruct could be inferred from the contents, and in which he ignored distinctions between fact and opinion.

The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe 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. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Note that Brandenburg does suggest, explicitly, that some speech is unprotected by the First Amendment. But people seeking a generic pro-censorship quote go to Holmes, not Brandenburg, and well they should — Schenck supports a loose and unprincipled interpretation of what the "fire in a theater" might be. [Edit: as a commenter points out, note that to be fair to Chayes she does mention Brandenburg even though she opens with Schenck.]

The Consequences of Uncritical Deference to the Government

Holmes was not specifically hostile to speech. It's likely that his permissive approach to government censorship in the Schenck arises from his deference to the other branches of government. Deference from the judiciary is a good thing when it comes to interference in general policy. It's a dangerous thing when it comes to interpretation of the state's power over the individual. Perhaps no Holmes case demonstrates this so well — or is so widely and justifiably condemned — as Buck v. Bell, in which Holmes wrote the opinion upholding forcible sterilization under a governmental eugenics policy. That led him to another famous rhetorical flourish, to which I allude in my title:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

Holmes' shocking callousness in this quote is different than his language in Schenck, but his casual and colloquial approach to endorsing government power over individuals is the same. As in Schenck, he offers a catchy slogan where a meticulous and principled standard is called for.

Bear all of that in mind the next time someone name-drops Holmes and cites Schenck as part of a broad endorsement of censorship. The problem isn't that they're incorrectly citing Holmes. The problem is that they are citing him exactly right, for the vague, censorious, and fortunately long-departed "standard" he articulated. Justice Holmes, three generations of hearing your sound-bite are enough.

Last 5 posts by Ken White

58 Comments

45 Comments

  1. Ken  •  Sep 19, 2012 @10:43 am

    tl;dr

  2. Lizard  •  Sep 19, 2012 @10:57 am

    Would I be considered overly cynical if I opined that the bulk of the people writing this drivel do not actually give a damn how many muslims are offended, but have as their intent setting precedents by which they can call for bans on speech they, personally, find offensive or which expresses ideas they think should not be allowed to be expressed? Once the "sensitivity" argument for censorship is accepted, anyone who claims to have had their feelings hurt can march forward and demand someone else be silenced, and since irrational and biased human beings (that is, ALL human beings, myself included) do not always apply laws rationally and without bias, it is obvious that there will rapidly involve classes of people whom it is legal to insult, and classes of people whom it is criminal to insult, and political movements will begin to focus on shifting groups from one class to the other, as there's a pretty obvious benefit if one side gets to point out the idiocies of the other without being at risk of the same being done to them.

  3. Windypundit  •  Sep 19, 2012 @11:16 am

    What a fascinating lesson. I have usually encountered the "shouting fire" quote not from advocates of censorship but from its opponents, explaining how some bit of proposed censorship falls short of what appears to be a fairly high standard: The "shouting fire" standard seems to require that the to-be-censored speech be (1) false, (2) said under circumstances in which there is no opportunity for reasoned reflection or debate, and (3) the cause of actual harm by those who hear it. I guess that's not what Holmes had in mind with that example, though, is it? And to my untrained mind, it looks like Brandenburg narrows that considerably.

  4. UTLaw  •  Sep 19, 2012 @11:52 am

    Excellent post. Bookmarked to read more thoroughly this evening.

    RE your comment that anyone who can reconcile the later opinions being a better lawyer–Holmes' later reversal of his sterilization opinion stood out to me as one of the few absolute reversals in Supreme Court history in my Con Law class. Most of the time, changes happened this way–a new case that purports not to change the old decision, but to be differentiated from it in some weak way.

    As we would read opinions and commentary and listen to lectures about how the Court disliked reversing itself because it took away from its prestige, or made people question its authority, or any other hogwash answer the writer or speaker du jour came up with, I kept having a phrase bubble up in my mind. "The law of the Medes and the Persians which cannot be changed."

    One wishes that our justices would have noted this phrase and the trouble the principle caused when they were in Sunday School and learned to be big enough men to admit when they or their predecessors had been wrong rather than claiming godlike infallability. Precedent might not remain as stable for as long (especially in our current climate), but we would have more clarity and fewer of these sets of opinions that cannot be honestly reconciled.

  5. Grifter  •  Sep 19, 2012 @11:59 am

    Thanks for the history lesson, Ken. It's nice to know the backstory of these things.

    I always thought the "shouting fire" argument was weak, just because "shouting fire" is a sort of fraud…I've used it myself when acknowledging the limits of individual speech with that understanding, which wasn't where Holmes was going when he made his point.

    The "imminent lawless action" in Brandenburg has always seemed clear only to those who understand how the court speaks better than me…by that standard, wouldn't the crappy film fail the Brandenburg test, considering the Danish cartoons set the knowledge that there is a large movement of violent, easily-offended Muslim extremists who would initiate lawless action in response to the movie?

  6. Roscoe  •  Sep 19, 2012 @12:05 pm

    Ha. Got the Buck v. Bell joke. I wonder why nobody ever uses that quote as evidence of the great justice's wisdom.

  7. Cassidy  •  Sep 19, 2012 @12:14 pm

    Wow! Thank's for posting this one, I shudder to think how many times I unwittingly looked like a fool using the fire in a crowded theater quote. Fortunately I was always using it to try and describe the idea that only speech that can cause immidiate phyisical harm should be prohibitable. At least now I have something else to yell about about in a drunken political rage at parties.

    Frankly I am surprised that Holmes did an about face on this. It doesn't really sound like the facts were particularly different. Perhaps just because they were no longer socialist protesters? It seems to me all of these restrictive laws, from little thingsa like "sit-lie" laws that try to target homeless people in San Francisco to the far more ominously vague "support for terrorism" laws always can garner support because people figure "Oh, I am not one of THOSE kind of people." And then they are shocked, SHOCKED that good people that they approve of get caught up in the aftermath. How many of these people would be foaming at the mouth to censor a movie that caused riots if it was just say, a film advocating Catholicism and was targeted towards a middle east audience.

  8. James Pollock  •  Sep 19, 2012 @12:18 pm

    Wouldn't the prohibition against falsely shouting "Fire!" in a crowded theater be an example of a permitted time-place-manner restriction? (You can, after all, falsely shout "fire!" in an EMPTY theater to your heart's content.)

    The other problem with the "fire-crowded theater" issue is that the experience of fire in a crowded theater is more remote than it was in Holmes' day. I mean, in the last fifty years, there was the Great White concert, and the Deep Purple immortalized "some stupid with a flare gun" at the Grand Hotel, which wasn't even on this continent.
    There were a bunch of people trampled to death at a Who show in Ohio back in the 70's, but that was because of festival seating, which pretty much no longer exists. Government regulation has oppressed business such that we don't have Triangle Shirtwaist stories, either.

  9. ShelbyC  •  Sep 19, 2012 @12:36 pm

    Great Post. And great title.

    @UTLaw, what reversal? AFAIK Buck is still good law, no? Forcible eugenic sterilizations shamefully continued in the US untill the '70's.

  10. Lizard  •  Sep 19, 2012 @12:53 pm

    @Grifter: As my non-lawyer mind understands it, the test of "imminence" has a lot to do with the direct connection of the speaker to the audience, and rests on the idea that the audience has a chance to reflect on the speech and react, rather than being caught up in the passion of the howling mob. If the test were as simple as "You ought to know this is gonna piss someone off", it would be so broad as to ban all controversial speech, and you could create a heckler's veto simply by making it publicly known that "If I hear anyone say this, I'm-a-gonna be so mad I'll punch someone!"

    The audience, of the video, or the cartoons, or a book, is not, at the time the speaker is speaking, a riled-up mob. They are individuals, alone, distanced by time and, erm, distance, from the speaker. They approach the material, unless someone ELSE has already got them mad, in an emotionally neutral state, and thus, choose how to respond.

    The "imminence" test is there to deal with literal lynch mobs and the like, not to target any speech which could be reasonably construed as likely to cause offense or even rage somewhere down the line. It's "don't wave the red flag in front of the raging bull" (yes, I know that's a factually dubious metaphor, thank you) clause, not a "don't manufacture red flags, because you've got to know someone will wave one in front of a bull" clause.

    On a completely unrelated note, I'm subbed to most threads here I post in, but I'm not getting replies. Other mail gets through just fine, and I've checked my spam filter, and nada.

  11. Waldo  •  Sep 19, 2012 @2:06 pm

    I rarely comment just to say "well done!" I'm making an exception for this post.

  12. Man Mountain Molehill  •  Sep 19, 2012 @2:42 pm

    Ironic how modern liberals who are all anti war 'n' stuff like to quote a (speciously worded and basically thugish) decision banning anti war speech.

  13. Rhymes With Right  •  Sep 19, 2012 @3:40 pm

    I often find myself reminding folks that the "fire in a crowded theater" argument is actually quite limited even as put forth by Holmes. He argues that FALSELY shouting fire in a crowded theater is unprotected because of the probability that it will provoke immediate and unreasoning panic which are likely to lead to injury and death. Holmes' analogy would certainly NOT ban shouting "fire" in said theater if there were, in fact, a fire — and an actor shouting "fire" as a part of the performance would also be protected speech. In each case the speech has some sort of value that makes it different from the false cry that Holmes spoke of.

  14. AJ  •  Sep 19, 2012 @3:55 pm

    I would like to offer up a little family history that goes to this. Our family has had many a red in it's history here in the US. During World War I some of my relatives set up a network to help draft dodgers escape into Canada. They honestly considered it an underground railroad that was preventing dissenters from being enslaved.

    Needless to say Woodrow Wilson was a rather unpopular President with some of them. Shouting "I like Holmes" would have been incitement to violence.

  15. Jess  •  Sep 19, 2012 @4:08 pm

    Ken, it may have been long but it was a very informative read. I didn't have all of this pulled together previously and I thank you for doing the work and making it a great read as well.

  16. PG  •  Sep 19, 2012 @8:55 pm

    Although note that the op-ed that began with this quote immediately followed it with the admission, 'Holmes' test — that words are not protected if their nature and circumstances create a "clear and present danger" of harm — has since been tightened. … The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.'

    I disagree with Chayes, but it's hardly surprising that someone like her — who used to work for the government, specifically in defense — would prefer to limit speech in order to make the government's job of maintaining order easier. I'm far more disappointed in the quote she got from Anthony Lewis, who has no such stake in repression.

    The neo-Nazis who marched in Skokie may have hoped to stir violence by the provocation of their speech, but that speech was nonetheless protected by the 1st Amendment and civil libertarians at the time defended it as such. I hope that we're not lowering the bar when the people who are to be stirred up are Muslims instead of Jews. Indeed, the popular suspicion, echoed by Chayes, that the video was used as a pretext for protests that then could be cover for a long-planned attack on the Libyan embassy, actually shows how *non*-imminent the violence was.

  17. wgering  •  Sep 19, 2012 @9:00 pm

    This. This is why I come to Popehat.

    Well, this and the taint-humor.

    But mostly this.

  18. Zorro for the Common Good  •  Sep 19, 2012 @10:19 pm

    Here's something I've always wondered about the "fire in a crowded theater" cliche? Would anyone ever actually be prosecuted simply for yelling it? Or would they only be prosecuted if it led directly to a violent stampede? As others have pointed out, you can yell it if it's true, or if you're in an empty theater. Similarly, if a crazy person yelled it and everyone ignored it because they all knew he was crazy, I have a hard time imagining that would lead to charges being filed.

    The parallel here is incitement. My (totally non-lawyer) understanding has always been that you can only be prosecuted for incitement to violence if your incitement leads to actual violence. Or am I wrong here?

  19. Rob Hyndman  •  Sep 19, 2012 @10:24 pm

    Superb piece. Just superb.

  20. G Thompson  •  Sep 19, 2012 @10:40 pm

    Thank you Ken, quite illuminating for a non American to understand where that quote and its context actually came from. Strangely I and a lot of people outside of the USA equate the phrase as a statement designed to ensure any action/expression you perform that is highly likely to create an imminent harm to your immediate neighbour is wrongful. Basically a form of negligence where you have a reasonable duty, breached that duty and harm actually occurs.

    Though it still has to be reasonably balanced against public interest and freedom of expression. Which means yes you can tell people there is a fire in a theatre but don't do it in such a way that you knowingly allow a panic resulting in imminent harm to people.

    In regards to the Video I cannot see the Fire analogy holding up since there is no neighbour duty, there is no immediate or imminent harm in publishing the film and the possibility of violence leading to harm of others (and even death) is too distant to enforce censorship of this nature. Otherwise we need to second and even third (6 degrees or more even) every single thing we produce anywhere on the premise that someone somewhere sometime might get butthurt enough that there own mental disorder or ideology could cause them to take violent action.

  21. Basil Forthrightly  •  Sep 19, 2012 @11:40 pm

    Speaking of "three generations", I recommend Stephen J. Gould's essay "Carrie Buck's Daughter" (reprinted in The Flamingo's Smile) to anyone interested in Buck v. Bell.

  22. Grifter  •  Sep 20, 2012 @12:11 am

    @Lizard:

    I agree that that's the intent, but it seems to me to be written in a way that could be interpreted different. I wish the standard was more explicitly phrased… I agree this video, awful and douchey as it is, should be protected. But using only the words as written it seems to me still that it fails the Brandenburg.

    Though Brandenburg is referencing actual advocacy of lawbreaking, which the movie wasn't… obviously the folks who deal with the law know stuff better'n the likes o' me, particularly where it comes to interpretations of words.

    Which brings me to a thought experiment:
    If there was a mob forming in a black neighborhood, and a white guy got up and said "All you N*****s go home!", which then inflamed the crowd and they rioted, would that fail the Brandenburg test?

    @PG:
    Wouldn't that rather show how very imminent it was? Imminent doesn't mean "spur of the moment", it means "at any moment" or "about to happen"…if there's a bomb on a timer you can say "an explosion is imminent", even though it was planned and placed. In this case, they were likely waiting for any excuse, with premeditation, so at any moment they were going to flip out, and anyone showing that video to them could say to his accomplice "any second now…"

  23. Adrian Ratnapala  •  Sep 20, 2012 @12:43 am

    …except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

    But by this standard, Bassily's video is not protected if the lawless action can be shown to be a predictable consequence of the film.

    But that standard is not enough. Real incitement involves actually exhorting your audience to violence (or whatever other lawless action). Bassily is not doing anything of the kind. Defining that as incitement just gives censorious mobs an incentive to riot even more.

    And then the actual crowded theatre example is different again…

  24. Grifter  •  Sep 20, 2012 @4:41 am

    So to be clear, that standard requires both likelihood of lawless action AND am exhortation to do that action specifically?

  25. Major Pribluda  •  Sep 20, 2012 @6:01 am

    I didn't know whether the situation more closely resembles shouting "Fire!" across town from a crowded but flame-free theater, or across town from a crowded theater engulfed in flames.
    Either way, even if the rarely understood yet oft-cited Holmes example meant what she wants it to mean, it stil wouldn't line up with the current situation.

  26. perlhaqr  •  Sep 20, 2012 @10:26 am

    It's a very odd day indeed when I (who has run straight off the edge of libertarianism into the deep-end of market anarchism) find myself in substantial agreement on an issue with someone who self-defines as a socialist.

    And thanks very much for the history lesson and context, Ken. That was a vastly informative essay.

  27. princessartemis  •  Sep 20, 2012 @11:01 am

    @Grifter, the video was released two months ago, but the rioting started on September 11th. That demonstrates the lawlessness is not "imminent"; otherwise, the lawlessness would have occurred imminently following the release of the video two months ago.

    The video cannot have failed such a test in this case because the lawlessness was not imminent. A two month delayed reaction is anything but imminent lawless action.

  28. Pablo  •  Sep 20, 2012 @11:19 am

    But by this standard, Bassily's video is not protected if the lawless action can be shown to be a predictable consequence of the film.

    If it can be shown that a YouTube video will predictably cause people to murder, we first need to stipulate to the existence of deeply defective people who are predictably irrational and violent. Then we need to restrain or eliminate because they're a much bigger threat to society than YouTube.

  29. Grifter  •  Sep 20, 2012 @11:21 am

    @princessartemis:

    Good point. Didn't realize!

  30. UTLaw  •  Sep 20, 2012 @1:19 pm

    @ Shelby C.

    I was thinking of the Supreme Court (I thought) overturning Buck v. Bell in Skinner v.Oklahoma and was going on my faulty memory from law school. That case was treated as overturning Buck v. Bell–shows the quality of the text.

    After you comment I went back and looked at the cases, and hope I have corrected my memory. Even that was not an explicit overturning–simply more of the same: creating contradictory precedents.

    Thank you for pointing out my error; apparently I am farther than I thought from Re-Educating properly.

  31. James Pollock  •  Sep 20, 2012 @1:22 pm

    Grifter, the answer to your thought experiment is that you're looking in the wrong place for the answer… the first amendment exception that would apply is the "fighting words" exception. According to Wikipedia, the meaningful case is Chaplinsky v. New Hampshire, which was a 9-0 decision.

  32. Jess  •  Sep 21, 2012 @3:58 am

    Apparently you can't let you kids play outside without getting arrested either. http://news.yahoo.com/blogs/sideshow/mom-sues-polices-she-arrested-letting-her-kids-134628018.html

  33. Joe Pullen  •  Sep 21, 2012 @8:53 am

    The late U.S. Supreme Court Justice Potter Stewart wrote: “Censorship reflects a society’s lack of confidence in itself.”

    Seems especially appropriate given recent events.

  34. Sparf  •  Sep 21, 2012 @9:12 am

    So something this brings up is an argument I heard made by Andrew Napolitano once (of Fox News fame), on a talk radio show that I had the misfortune to be listening to. It was about the framing of restriction of speech.

    In his legal opinion, all speech is protected by the first amendment. Period. Fire in a crowded theatre included. The first amendment doesn't make exceptions. You cannot actually be arrested for the 'crime' of saying anything, no matter what it is. What you CAN be arrested for is the outcome if, say, you are inciting a mob to riot or causing a dangerous situation. The two things in his mind are absolutely separate. To Napolitano, the consequences that result are the sole indicator of whether a crime has occurred.

    For example, in his view, you could yell fire in a crowded theatre all you want with no consequence if nobody believes you and therefore the speech causes no harm. It does not prevent your ejection from the theatre by the management, of course, nor protect you from someone else deciding to commit assault and battery. But those are the consequences you live with by exercising that right.

    It's a very interesting argument, and while Napolitano has never seemed like my sort of person and I tend to not like his politics or his over-the-top alarmism about the downfall of America and I certainly do not believe in strict-constructionism, This particular view is at least interesting to consider, given its ramifications. Thoughts?

  35. Grifter  •  Sep 21, 2012 @10:37 am

    @James Pollock:

    1, Thank you, I was unaware; I had heard of the doctrine, but had never actually looked up the precedents that established it.

    2, Forgive the cursing, but Jesus tapdancing tittyfucking christ on a pogo-stick that's a terrible ruling (IMHDO). The idea that calling someone a name can be made illegal. Just…wow. Definitely puts our earlier debate in a different light (not that I agree with you, but rather now I see the direction from whence you came).

    "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

  36. Scott C  •  Sep 21, 2012 @1:34 pm

    I'm always reminded of this speech by Christopher Hitchens when people bring up the fire in a theatre argument.

  37. James Pollock  •  Sep 21, 2012 @3:12 pm

    Grifter, I don't think that recognizing the reality that human beings are not always rational is a wrong decision. It would be nice to live in a world where people were always rational and therefore always shrugged off intentional provocation, but we don't. Fortunately, this is a doctrine rarely invoked because the behavior prevented is largely self-correcting in the real world. For example, the white-supremacist crowd is quite vocal when they are the mob, and when they can spew anonymously; they tend to stay real quiet when they are alone in minority neighborshoods.
    I can only assume planet Vulcan has no need of such a doctrine.

  38. Grifter  •  Sep 21, 2012 @5:53 pm

    @James Pollock:

    At the risk of descending into our previous debate,

    "En route to the station, the officer, as well as members of the crowd, insulted Chaplinsky and his religion. Chaplinsky responded by calling the town marshal, who had returned to assist the officer, a "damn fascist and a racketeer" and was arrested for the use of offensive language in public."

    The fact that that was upheld as legitimate seems ridiculous to me.

  39. Gavin  •  Sep 21, 2012 @6:09 pm

    @James Pollock:

    For example, the white-supremacist crowd is quite vocal when they are the mob, and when they can spew anonymously; they tend to stay real quiet when they are alone in minority neighborshoods.

    Yes, anonymity, safety in numbers, or simply holding the best cards can bring out the worst in humanity.

  40. James Pollock  •  Sep 21, 2012 @6:53 pm

    Grifter, keep in mind that once a case reaches the appeals court level, the case is no longer about the facts, but about points of law. That case answers the question "does the first amendment preclude states from banning "fighting words?" (no, it does not… technically, the question is about the 14th amendment but that matters only to people who focus on unimportant details). The case does not attempt to answer the question "should this guy be in jail?" (It also doesn't attempt to answer the question "shouldn't law enforcement officers be trained to a higher level so that "fighting words" are far less likely to affect them?")

  41. Grifter  •  Sep 21, 2012 @9:09 pm

    @James Pollock:

    That's not entirely true:

    "Chaplinsky was fined, but he appealed, claiming the law was "vague" and infringed upon his First Amendment and Fourteenth Amendment rights to free speech."

    If the argument is whether the law was vague enough to be misapplied (if Chaplinsky's speech should have been protected), I would think the circumstances very much would factor into that decision.

  42. Grifter  •  Sep 21, 2012 @9:12 pm

    The law, btw, was:

    "Under New Hampshire's Offensive Conduct law (chap. 378, para. 2 of the NH. Public Laws) it is illegal for anyone to address "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place … or to call him by an offensive or derisive name."

  43. TJIC  •  Sep 23, 2012 @2:59 am

    > We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done.

    Sounds like something Radley Balko once said to me.

  44. James Pollock  •  Sep 23, 2012 @9:12 am

    Grifter, as you will no doubt be unsurprised to learn, lawyers mean something different when they use the word vague. A law that is found to be void for vagueness doesn't have anything to do with whether or not it's hard to tell if the actions the present defendendant fall under the law. (This is what we pay prosecutors and especially judges to figure out for us.)
    Rather, a law is void for vagueness if an ordinary person cannot tell in advance if their actions will or will not fall under the law. So, Chaplinsky's lawyer is making two different attacks on the law, one of vagueness and the other a first(fourteenth) amendment argument. He lost both, but the case is significant because of the first(fourteenth) amendment argument… I don't think the law is vague (it doesn't spell out specifically which epithets you can't yell at which specific groups or types of people, but the idea of yelling epithets stands on its own.)

    I think today you'd attack the law as overbroad, in that it catches non-protected speech AND protected speech, and might have better luck.

  45. Fluffy  •  Sep 24, 2012 @1:00 pm

    The "shouting fire" standard seems to require that the to-be-censored speech be (1) false,

    I should think that merely showing that the statement was false would be insufficient; you'd also have to show that the speaker knew it to be false.

    That's a pretty steep burden. To meet it, you'd have to introduce evidence that went beyond the mere act of speaking at that moment, to show evidence of bad intent. And once you do that, you aren't really punishing the speaker for speech any more. If I dig a put and fill it with spikes and call you towards me to get you to run into the pit and kill yourself, that's murder, and not "speech". I'm not being punished for my words, but for my overall plot to murder, of which the speech was merely one element.

    It's really a terrible example for any number of reasons.

    In addition, the problem with the "clear and present danger" standard is that it requires agreement as to what constitutes a danger, and by definition we never have that. In the case of World War I, the US participation in the war was the result of an action of the Congress – and what Congress can make, it can unmake, at any moment. That means that even speech that would demonstrably lead to losing the war couldn't constitute a "clear and present danger", because the Congress had declared war, and could also abandon the war at any moment it chose; if Congress can abandon the war whenever it chooses, it can't possibly be a "clear and present danger" to the country for me to advise the Congress to abandon the war. Nothing is really a "clear and present danger" because whatever the Congress can be induced to embrace is by definition the "right" outcome, and that means what is and what is not a danger is entirely dependent on the vagaries of the political process.

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