Ken White deconstructs the “fire in a crowded theater” canard about free speech

In 2012 at the legal blog Popehat, Ken White, a criminal defense lawyer and free-speech maven, deconstructed the famous phrase uttered by Supreme Court Justice Oliver Wendell Holmes, Jr. in an opinion about “free speech” in wartime. In 1919 there was a series of three Supreme Court decisions against men (socialists, foreigners, and anarchists) who spoke and published pamphlets against America’s participation in World War I—as well as against conscription (the draft). In all three cases, Holmes and the Court upheld the convictions, and each person was sentenced to ten years in prison for producing what today would be considered free speech.

Although White’s post, “Three generations of a hackneyed apologia for censorship are enough“, is a bit long, it’s well worth reading, for it shows how increasing tolerance for speech has evolved, as well as how Holmes’s famous statement has been misused to advocate continuing censorship of speech that mentions or threatens violence without inciting it on the spot (White gives an example of the mis-citation here). This of course includes “hate speech,” which many people either equate with violence itself or say could cause violence in the future. Although White’s piece is six years old, it’s still highly relevant.

The 1919 decision was in the case of Schenck v. United States. In short, Charles Schenck was a socialist who helped publish a pamphlet arguing that mandatory conscription violated the Thirteenth Amendment, mailed the pamphlets to draftees, criticized conscription as despotism, and urged men to resist being drafted. Schenck was charged under the Espionage Act and was convicted in a lower court. In a unanimous Supreme Court decision, written by Holmes, the judgment was that free expression, even if it urged peaceful resistance to draft or war, could be punished because it would interfere with the conduct of the war. And that decision contains the famous statement that we hear so often (my emphasis):

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.

Notice that this restriction of antiwar speech, though justified as hindering the conduct of the war, would not be allowed to stand today. During the Vietnam war, many people, including me, spoke against the war and urged people to avoid the draft (I applied for conscientious objector status, but were I not granted it I was prepared to go to jail). Nobody was prosecuted for antiwar speech in the Sixties.  Things have changed, and for the better, for antiwar speech in the Vietnam era helped America realize it was involved in a senseless war that took the lives of many Americans and Vietnamese; and ultimately we got out.

In two other 1919 Court decisions, including that upholding the conviction of Eugene Debs, Holmes and the other Justices also upheld convictions under the Espionage Act, establishing a precedent that speech could be restricted if it hindered the government’s conduct of a war. That, apparently, included peaceful criticism of the war or the draft, not just violent resistance to conscription or, indeed, any talk of violent resistance.

Then, in 1920, the Court and Homes did a 180-degree turn. In the case of Schaefer v. United States, two German newspapers and their executives had been put on trial for also violating the Espionage Act. But this time, the court overturned the convictions and, as White notes, began laying the groundwork for the current interpretation of free speech. Holmes joined Justice Louis Brandeis in a partial dissent that tried to clarify the meaning of “clear and present danger”, a phrase that Holmes himself had used to in upholding Schenck’s conviction. (My emphasis)

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.

As White notes, this decision was completely at odds with what Holmes and the Court had decided just a year earlier. Finally, in the 1969 case of Brandenburg v. Ohio, the Supreme Court established the current and continuing standard for what speech violates the First Amendment. From the decision:

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.

So even speech that advocates force, violence, or breaking the law cannot be punished unless it is directed at “producing imminent lawless action and is likely to incite or produce such action.” Remember, the operant word here is “imminent”, so that calling for lawbreaking or force that only later induces violence does not violate the First Amendment.

This, of course, rules out what most de-platformers and critics call “hate speech”, like the appearance of people like Steve Bannon in Chicago this fall or Milo Yiannopoulos at Berkeley (the latter never got to speak; his scheduled appearance caused violence, but not because he urged it). When people say “hate speech is not free speech”, they are nearly always wrong, for I can’t think of a single case where someone has urged “imminent lawless action” or anticipated that that would happen on the spot. Even if Bannon’s speech prompted some white supremacist to commit violence a few weeks thereafter, that speech would still be protected by the First Amendment. Speech promoting “remote” violence is still protected by the First Amendment.

It would be salutary, if, along with the mandatory sexual and diversity training that first-year students get at many American colleges, they also got a lesson on free speech, how the courts interpret it, and why the First Amendment was added to the Constitution.

 

h/t: Grania

55 Comments

  1. GBJames
    Posted March 30, 2018 at 9:40 am | Permalink

    sub

  2. colnago80
    Posted March 30, 2018 at 9:59 am | Permalink

    Actually, the ukase against yelling fire in a crowded theater should read: Falsely yelling fire in a crowded theater is illegal.

    • Posted March 30, 2018 at 10:24 am | Permalink

      Good point!

    • JonLynnHarvey
      Posted March 30, 2018 at 1:42 pm | Permalink

      And indeed all these war protestors were shouting fire when there really really was a fire.

      Apparently, Ann Coulter did not study these cases when she wrote “Treason”

  3. Randall Schenck
    Posted March 30, 2018 at 10:07 am | Permalink

    The great thing about the history is that it shows the law, the amendment, does not stand still. Whatever it was meant to be in the beginning was for us to figure out and to redefine for our time. Not what we thought it meant in 1791 but what it means now. That is why the so-called original constitutionalist are mostly wasting their time attempting to figure out what was the meaning 240 years ago. That has always been the error of the conservative, republican court.

    This is why someone such as Jefferson thought we would probably need to rewrite the constitution every 19 years. It is also why those who think the second amendment means what it means is just garbage. For today it means whatever we want it to mean. And that goes with regard to how poorly those conservatives misinterpret the original meaning. To not bring the meaning up to date is just as wrong as not leaving your current opinions and judgments behind when you go back in history.

    • Posted March 30, 2018 at 10:21 am | Permalink

      This brings up the point of those willing (ideologues) and/or able (monied) to affect changes to laws that bring new interpretation to our Constitution.

      The general electorate knows not that it happens, usually, not does it care, unfortunately.

      I fully agree with the view that the Constitution must be interpreted for our times not of the time when people were enslaved or disenfranchised deliberately. It, our supreme law, is stale. Jefferson was right.

    • Brujo Feo
      Posted March 30, 2018 at 11:26 am | Permalink

      Randall Schenk:

      “For today it means whatever we want it to mean.”

      Now that’s hilarious. Or stupefying, or both.

      “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

      –LEWIS CARROLL (Charles L. Dodgson, 1832-1898), Through the Looking-Glass, chapter 6, p. 205 (1934). First published in 1872.

      Source: http://www.bartleby.com/73/2019.html

      • phil
        Posted March 30, 2018 at 8:30 pm | Permalink

        Makes me wonder why the US constitution (and similarly the Australian constitution) were made so difficult to change. There is only so much that can be done through interpretation, without taking Humpty Dumpty’s approach.

        • Jonathan Dore
          Posted March 31, 2018 at 6:40 am | Permalink

          When there were only 13 states it might not have seemed impossibly hard to get two-thirds of them to agree. With 50 it’s almost impossible.

          • phil
            Posted March 31, 2018 at 8:31 pm | Permalink

            Here in Oz the Constitution can only be amended after a referendum, and I think it must pass with 2/3rds majority plus in a majority of states, of which there are six (dunno how the territories stand in this, although I can’t think of a logical reason why they shouldn’t be included). The net effect is that constitutional changes are relatively easy to defeat. It is commonly said that they won’t succeed without support from both sides of politics.

            Australia has had no significant changes in political organisation since federation to compare with the US going from 13 to 50 states, and yet constitutional change is still quite difficult. I think a major factor causing this is that the systems were deliberately made such that it would be difficult to make constitutional changes, for the sake of stability, and to keep it from being controlled by whichever political faction holds the day. Like many things in life, a compromise was made, and we have to live it (or change but it, that’s the problem we are discussing).

            • Jonathan Dore
              Posted April 1, 2018 at 9:01 am | Permalink

              I agree that in most mature democracies it’s deliberately hard to amend constitutions — and I’m inclined to think that’s a good thing on balance, for the reasons you state, i.e. it’s a lesser evil than what might potentially occur otherwise. With the benefit of hindsight, the first 10 amendments to the US Constitution had a rather easy ride — they were all discussed and voted on at the same time, which would have made the passage of each individual one correspondingly easier, and they were passed at a time when the Constitution was only a year old, by the same people who wrote it, and who thus felt they had a right to change it. Later generations have been taught to revere it so much their reluctance to change it is often disabling.

  4. John Black
    Posted March 30, 2018 at 10:12 am | Permalink

    My first thought reading this was, “what happened to those poor guys who were sentenced to 10 years each after Holmes reversed himself a year later?” I wonder if they were retried?!

    Ahh, the vicissitudes of our legal system…

    • Randall Schenck
      Posted March 30, 2018 at 10:19 am | Permalink

      There is this thing, the grandfather clause but it is not likely they use it for these things.

    • Ken Kukec
      Posted March 30, 2018 at 11:26 am | Permalink

      Eugene V. Debs served nearly three years of his 10-year federal bid, until his sentence was commuted (owing to poor health) by the hapless and ill-fated Warren G. Harding. While imprisoned, Debs received nearly a million votes in the 1920 US presidential election, running at the top of the Socialist Party ticket.

  5. Posted March 30, 2018 at 10:14 am | Permalink

    It would be salutary, if, along with the mandatory sexual and diversity training that first-year students get at many American colleges, they also got a lesson on free speech, how the courts interpret it, and why the First Amendment was added to the Constitution.

    Hear, hear!

    • Liz
      Posted March 30, 2018 at 11:51 am | Permalink

      Yes. Definitely. That would be wonderful.

    • Heather Hastie
      Posted March 30, 2018 at 1:03 pm | Permalink

      I agree too. Too many seem not to understand the First Amendment on both sides of the aisle. We’ve mostly been discussing the authoritarian left, but there are also those who think freedom of religion doesn’t also mean freedom from religion.

  6. Richard Sanderson
    Posted March 30, 2018 at 10:20 am | Permalink

    Apparently, one of the silly arguments constantly put forward is that “free speech warriors” never defend anybody but far right racists and nutters. New Racist Peter “Humanisticus” Ferguson is one the major culprits of this non-accusation.

    Now, of course, “free speech warriors” rarely HAVE to defend the free speech of centrists, liberals, the left, etc. That answers that “conundrum” that so puzzles the regressives and New Racists.

    However, as a “free speech warrior”, I will happily defend the free speech of those on the far left. Case in point – Stephane Poussier, a far left French activist who was sentenced for “justifying acts of terrorism”. What she said was nasty and offensive, but I defend her right to say it.

    So there. A “free speech warrior” defends the free speech of someone on the far left. Happy now, New Racists?

  7. glen1davidson
    Posted March 30, 2018 at 10:24 am | Permalink

    Constructive treason is not free speech. And calling free speech “hate speech” is constructive treason.

    So we can hang the de-platformers.

    No worse than their logic, at any rate.

    Glen Davidson

  8. Ken Kukec
    Posted March 30, 2018 at 10:30 am | Permalink

    The title of Popehat’s piece is taken from Justice Holmes’s most shameful legacy — his opinion upholding forced sterilization laws in Buck v. Bell, in which he infamously proclaimed “three generations of imbeciles are enough.” Stephen Jay Gould wrote a celebrated essay about that decision.

  9. glen1davidson
    Posted March 30, 2018 at 10:36 am | Permalink

    Perhaps it should be noted that there certainly was nothing novel about the idea that war-time censorship was justified. The Civil War, in particular, spawned a lot of censorship, and also suspension of the writ of habeas corpus.

    So it’s not surprising that during World War I they allowed censorship again. They’d have to wait until after the war to recognize that war is no excuse to suspend one’s civil rights.

    Glen Davidson

  10. Ken Kukec
    Posted March 30, 2018 at 10:56 am | Permalink

    I’m not sure we can say Holmes “did a 180-degree turn” on free speech (since the first, weak version, of the “clear and present danger” test was formulated in the 1919 cases), but he certainly tacked sharply off the prevailing free-speech headwinds. The primary influences on Holmes’s free-speech evolution were fellow justice Louis Brandeis, the high court’s great free-speech champion, and Holmes’s frequent correspondent from the lower courts, the whimsically named judge “Learned Hand” — probably the most influential American jurist never to sit on the Supreme Court. Hand’s influence is roughly analogous to that of Judge Richard Posner today (perhaps very roughly, in that Hand did not speak out publicly on highly contentious issues, the way Posner routinely does).

  11. Curtis
    Posted March 30, 2018 at 11:05 am | Permalink

    The First Amendment IS ONLY FOR HATE SPEECH. That is speech that someone hates and wants banned. Mary had a Little Lamb is never banned nor is “I think Obama/Trump” is great.

    It defends offensive and vile speech that causes people to think “there oughta be a law.” Being revolted is the price of freedom.

    • Curt Nelson
      Posted March 30, 2018 at 12:52 pm | Permalink

      Yes, being hated even.

  12. Brujo Feo
    Posted March 30, 2018 at 11:23 am | Permalink

    “Finally, in the 1969 case of Brandenburg v. Ohio, the Supreme Court established the current and continuing standard for what speech violates the First Amendment.”

    and…

    “Remember, the operant word here is ‘imminent’, so that calling for lawbreaking or force that only later induces violence does not violate the First Amendment.”

    Jerry, I’m pretty sure that what you mean is “…is *not protected by* the First Amendment. I’m not sure how speech could violate anything (other than whatever statute is undergoing First Amendment scrutiny).

    • Posted March 30, 2018 at 1:28 pm | Permalink

      Yes, I asked Grania to fix that as I was getting my car inspected. It should be ok now, thanks.

  13. Posted March 30, 2018 at 12:00 pm | Permalink

    I am as strong a Supporter of free expression as anyone, but I must point out that the standards applicable to the Government under the First Amendment, do not necessarily apply to colleges and universities, especially privately funded ones. I am not sure that this post, albeit interesting, is even germane to de-platforming of speakers at universities.

    • Randall Schenck
      Posted March 30, 2018 at 12:22 pm | Permalink

      All of the rights in the bill or rights were protections against government action. Has no application to private concerns.

    • Posted March 30, 2018 at 1:29 pm | Permalink

      Yes, state schools have to conform to First Amendment principles. And, as I’ve stated on this site many times, while private schools don’t, it would behoove them to follow First Amendment guidelines. I’m at a private school that does that.

    • eric
      Posted March 30, 2018 at 1:41 pm | Permalink

      De-platforming (in a disruptive way) applies to the rights of the students who invited the speaker. You’re right, an outside person has no 1st amendment right to walk on to campus and speak (unless the Uni specifically has that written into their charter or other legal documents). But the inviting student has equal rights as the objecting students.

      If the university wants to make a “no invites, period” rule, that will solve the problem and prevent odious speakers – at the cost of preveting the students from hearing popular speakers. Likewise a “no disruptions, period” rule will solve the problem. But a policy which is, in practice “disruptions for that students’ event are okay, but disruptions of this students’ event will be prevented” is IMO a violation of their constitutional right to equality. And if that policy is based on the content of the speech the student is bringing on campus, it could easily IMO be viewed as a violation of free speech too.

      • phil
        Posted March 30, 2018 at 8:47 pm | Permalink

        “…at the cost of preveting [sic] the students from hearing popular speakers.”

        But here’s the thing, it does NOT prevent people from hearing or reading these or any other speakers through a different channel or medium. It does not prevent the speaker’s words being considered in classes or lectures. Deplatforming is not an effective form of censorship. I’m not convinced it is really censorship at all.

        This was one of Nesrine Malik’s major points: deplatformed speakers in the US and UK are just not subjected to the same sorts of state imposed sanctions as “The disappeared of Egypt, the jailed and flogged blasphemers of Saudi Arabia, the arbitrarily detained bloggers and journalists of China are being denied freedom of speech.”

        • Posted March 31, 2018 at 2:14 am | Permalink

          How can you be sure that the people who wanted to hear what the speaker had to say could hear it through another channel? That presupposes that the speaker will always publish the content of their speeches in more than one place.

          Speakers aren’t deplatformed for what they are going to say, they are deplatformed because their opponents fear what they might say, or as punishment for things they have said in the past.

          • phil
            Posted March 31, 2018 at 8:04 pm | Permalink

            “How can you be sure that the people who wanted to hear what the speaker had to say could hear it through another channel?”

            I can’t, but now you’re changing the argument from freedom of speech to freedom to hear (read, see, etc, etc). Do you have kids? Do you allow them to watch pornography?

            “Speakers aren’t deplatformed for what they are going to say, they are deplatformed because their opponents fear what they might say, or as punishment for things they have said in the past.”

            Possibly but not necessarily, but so what? I’ve made my thoughts on deplatforming elsewhere on this site.

            • Posted April 1, 2018 at 7:32 am | Permalink

              I can’t, but now you’re changing the argument from freedom of speech to freedom to hear (read, see, etc, etc)

              The freedom to hear/read etc is implied by free speech. You don’t have free speech if the government can make a law that makes it illegal for people to listen to you.

        • Posted March 31, 2018 at 6:14 am | Permalink

          Deplatforming is a classic example of something so common, it has a name:

          The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.

          Source: wiki.

          • phil
            Posted March 31, 2018 at 8:18 pm | Permalink

            In some cases that probably occurs, however it also serves to deliver public opprobrium to the prospective speaker (although not always deserved). But if the Streisand effect applies then the speaker has hardly been censored, people have have found an alternative channel to receive the speech.

            To be frank I wouldn’t say I’m a fan of deplatforming, I just don’t think it really qualifies as censorship, certainly not serious or effective censorship, because it usually only applies in one instance and usually the effects can be easily bypassed.

            An interesting tale: a few years ago an Australian woman, Belle Gibson, made claims that she had had terminal cancer and had cured herself through diet. She signed a lucrative contract with Penguin to publish a book of her recipes. When it was revealed to be a hoax the contract was cancelled and the book pulled from the shelves. There was no outcry from the free speech defenders over that, and it was just a cookbook.

  14. mirandaga
    Posted March 30, 2018 at 12:06 pm | Permalink

    I’d like to take this opportunity to applaud our host for his continuing and excellent coverage of free speech issues on college campuses. Whenever I see one of these I know that I can count on cogent reasoning and common sense. The one exception I might make is the comment, in the post about the University of Edinburgh Coursera course, that “It’s not ‘free speech’ to tell lies to students,” since it seems to me that “untrue speech” is as susceptible to abuse and biased interpretation as “hate speech.” But other than that, thanks for all the wise words about this important issue.

  15. Posted March 30, 2018 at 12:17 pm | Permalink

    Reblogged this on The Logical Place.

  16. Posted March 30, 2018 at 12:50 pm | Permalink

    “As I said, I’m in favor of diversity initiatives, as they constitute a form of academic “reparations” that we still need since genuine reparations, which I see as ensuring equal opportunities for all from the outset, are simply not in place. (That means, for instance, a lot of money to improve secondary schools).”

    Well, it seems to me that if you believe the above, then it pretty much dilutes your criticism of required diversity plans.

    • Posted March 30, 2018 at 1:32 pm | Permalink

      My objection was that faculty have to pass some personal diversity test to get hired, not that universities shouldn’t have diversity initiatives (not just for gender and race, but for class and ideology as well). There is no “dilution” here.

  17. Randall Schenck
    Posted March 30, 2018 at 1:08 pm | Permalink

    I believe people would do well to think of free speech and the first amendment as a restriction on government, not incitement to the people.

    • eric
      Posted March 30, 2018 at 1:46 pm | Permalink

      It’s a restriction on what government can bar people from doing. Insofar as an organization of the state attempts to bar people from hearing speech based on its content, it could be covered by the first amendment’s restriction on government.

      Though I could see de minimis 1st amendment ruling coming back to bite conservatives in the butt. If 1st amendment protections don’t prevent a state government from barring certain speech on a state-licensed campus, then the 2nd amendment protections don’t prevent a state government from barring certain arms sales in state-licensed shops.

      • Randall Schenck
        Posted March 30, 2018 at 1:51 pm | Permalink

        Not a lawyer but I think sometimes they tie these things to the state via the 14th amendment. Also, I think the right to own arms can still allow for lots of regulation.

  18. Ullrich Fischer
    Posted March 30, 2018 at 4:56 pm | Permalink

    Hmmm. I’m not sure I agree with allowing speech which will clearly later cause violence, for instance “All women who have abortions should be hung”. It isn’t specifically threatening imminent violence, but still clearly is likely to be persuasive to the next potential abortion clinic bomber as a justification.

    • phil
      Posted March 30, 2018 at 9:01 pm | Permalink

      I also wonder about how youngsters are radicalised into extreme Islamic ideologies. Should such potentially radicalising propaganda be considered free speech? With an eye on preserving public safety I would consider not, and yet there is likely to be significant time elapse between radicalisation and violent action.

      • mirandaga
        Posted March 31, 2018 at 2:38 am | Permalink

        The Supreme Court has consistently ruled that as long as the rights of individuals to be free from physical harm are not imminently endangered, the law ought to protect as wide a sphere of free expression as possible. If we interpret “imminently endangered” to mean that somewhere down the line some whacko might use such expression as justification for violence, we’re opening a can of worms that will ultimately produce far more harm than it prevents.

        • phil
          Posted March 31, 2018 at 7:31 pm | Permalink

          Well, excuse me but I don’t find “slippery slope” and “can of worms” arguments worth considering. The US, or at least OW Holmes, has already gone up the “slippery slope” to a more liberal interpretation of the 1st Amendment.

          Anyway, US law does not apply to us in Australia, we decide our own laws. We have no explicit right to fee speech in our Constitution, although it has been said that there is an implied right to free speech.

          By way of example “an unarmed police civilian finance worker” was shot and killed outside his place of work by a radicalised 15 yo boy (who was subsequently engaged and killed by armed police). Why should anyone who urged him to perpetrate this act be entitled to get away without sanction? Is Curtis Cheng’s life just the incidental cost of freedom of speech? The problem I have with this incidental cost argument is that it is pretty much an argument used to justify the current level of gun control in the US, and look how successful that (gun control) has been. At what point do you say “Hold up, this is going too far” and start to implement controls? Doesn’t the state have a duty, a responsibility to protect citizens?

          • mirandaga
            Posted April 1, 2018 at 1:22 am | Permalink

            “Why should anyone who urged him to perpetrate this act be entitled to get away without sanction?”

            It all comes down to what “urged him to perpetrate this act” means. If it meets the definition of “inciting to violence” that “imminently endangers” another person’s life, then the person doing the urging should not and, by American law, would not “get away without sanction.” If it means expressing a radical or odious opinion that indirectly prompts some nutcase to later take another person’s life, then this falls under the First Amendment protection of free speech.

            There’s no question that the state has a duty and responsibility to protect citizens; that’s precisely what the First Amendment is designed to do. Your question—“At what point do you say ‘Hold up, this is going too far’ and start to implement controls?”—is exactly the right one. Unfortunately, there’s no easy answer. It all depends on the direction–freedom or control–that a given society chooses to err in.

    • mirandaga
      Posted March 31, 2018 at 2:15 pm | Permalink

      “All women who have abortions should be hung”.

      This opinion is based on two positions: 1) that taking the life of an unborn baby is murder and 2) that capital punishment is appropriate in the case of murderers. Both of the positions are highly controversial but neither can reasonably be equated with advocating for the killing of abortion doctors. You’re trying to state your case in terms of protecting abortion doctors from violence, but in effect you want to silence the expression of positions that you strongly disagree with. This is precisely what the First Amendment is designed to prevent you from doing.

      • phil
        Posted March 31, 2018 at 7:57 pm | Permalink

        I like the way you segued from “All women who have abortions should be hung” to “protecting abortion doctors”.

        “You’re trying to state your case in terms of protecting abortion doctors from violence, but in effect you want to silence the expression of positions that you strongly disagree with.”

        No I do not. If anything I think we should want to silence the expression of positions that are socially dangerous. I am asking why “the expression of positions that you strongly disagree with” takes precedence over protecting somebody’s life (or lives). I am tacitly asking of you to defend the position, which you and others seem to be taking, that someone’s freedom of speech trumps someone else’s right to life, liberty, and the pursuit of happiness. So far the most compelling argument for that I’ve heard so far amounts to little more than “It’s too hard.”

        To be honest I think absolute freedom of speech sounds like a great ideal, but I am not totally convinced by arguments I’ve so far heard that it should not have limits. In fact it DOES have limits already, even in the US, and that is a point frequently ignored.

        By comparison in Australia there is no explicit right to free speech in the Constitution, but Australia hasn’t devolved into a repressive authoritarian state. There is argument that things should be changed.

        As an analogous comparison Australia has not banned guns altogether, but if you have a legitimate use for one you can buy and own one, but it has to be registered and the owner has to be licenced. Since the Port Arthur massacre there have been no more massacres in Australia, and the suicide by gun rate has dropped dramatically. The point I am trying to illustrate is that the the society with the most absolutely free citizens is not necessarily the safest, or the healthiest.

        As JS Mill wrote “All that makes existence valuable to anyone depends on the enforcement of restraints upon the actions of other people. Some rules of conduct, therefore, must be imposed – by law in the first place, and by opinion on many things which are not fit subjects for the operation of law.”

        • mirandaga
          Posted April 1, 2018 at 12:44 am | Permalink

          If you read further, you’ll see that JS Mill goes on to say, ““An opinion that corn dealers are starvers of the poor, or that private property is robbery, ought to be unmolested when simply circulated through the press, but may justly incur punishment when delivered orally to an excited mob assembled before the house of a corn dealer, or when handed about among the same mob in the form of a placard.” So no one, not Mill or the Supreme Court or myself—is advocating for “absolute freedom of speech.”

          The only question is, what constitutes “imminent danger” when it comes to “inciting to violence.” You and I simply disagree about where to draw that line.

  19. phil
    Posted March 31, 2018 at 2:34 am | Permalink

    “In 2012 … Ken White … deconstructed the famous phrase uttered by Supreme Court Justice Oliver Wendell Holmes…”

    Yeah? I don’t see it. The piece is a long and tedious exposition (one comment was “tl;dr”) of the history of some of Holmes High Court decisions regarding his change of mind on free speech, but in reality White devotes rather little of it actually deconstructing “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” in my view. He does spend time criticising people’s use or misuse of it.

    White says “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.” Fine, but often it is neither implicit nor explicit when free speech absolutists set off on a rant, so it serves to get the discussion within the limits of reality.

    White also says “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.” They do? Can’t say I’ve noticed. If it is indeed just an implication as White says then that is really only his opinion IMO. Mind you I can’t say I move in circles where Holmes is frequently quoted.

    When freedom of speech comes up absolutists tend to say things along the lines of “no speech should be banned” or “all speech should be free,” and often the First Amendment gets a mention. To be clear the right to free speech in the United States and elsewhere is not unlimited, and furthermore the First Amendment only applies to the *government* abridging the freedom of speech (etc, etc).

    But what did Holmes actually say? In Schenck vs. United States he wrote this:

    “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.”

    Note the last two sentences “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.”

    Is that radically different to the current interpretation? IANAL but I don’t think so. “A clear and present danger” doesn’t seem that far from “imminent lawless action.” Yes yes, there is some fine legal slicing and dicing to argue a difference, but Wikipedia notes that “The Court has repeatedly reaffirmed Schenck…”

    In Abrams v. United States, after Holmes had apparently changed his mind, he more or less repeats himself from Schenk:

    “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.”

    Towards the end White admits that “Holmes was not specifically hostile to speech.” From my limited understanding of Holmes’ earlier decisions I agree that they were incorrect. But “shouting fire in a theater” has become shorthand for “free speech is not unlimited”, and sure, it is probably misused, most frequently by omission of “falsely…” In much the same way “Lead on McDuff” is misused and misunderstood. But the whole long piece boils down to a history lesson to explain why White, motivated by the origins of the phrase, is sick of hearing it. Deconstruction? I think not.

    But all was not lost. In the comments I found this passionate defence of free speech by Hitch …

    http://www.youtube.com/watch?v=jyoOfRog1EM


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