Even Speech We Hate Should Be Free
Those who want to limit freedom of speech are misusing Oliver Wendell Holmes’s famous 1919 line about ‘shouting fire in a theater’
The shouting-fire-in-a-crowded-theater standard seldom gets much scrutiny. ILLUSTRATION: BRIAN STAUFFER
In any debate today about how to respond to “offensive” or “inflammatory” speech, it is only a matter of time before somebody trots out that most familiar of talking points. “There is no right,” the opiner will say, “to shout fire in a crowded theater!”
Taken from a 1919 Supreme Court decision by Justice Oliver Wendell Holmes, the fire-in-a-crowded-theater standard seldom gets much scrutiny. It tends to shut down discussion rather than to open it up. But that shouldn’t be—it is a flame well worth extinguishing.
First, its meaning has been inflated and distorted beyond recognition.
The 1919 Supreme Court case concerned Charles Schenck, secretary of the U.S. Socialist Party, who was convicted under the Espionage Act for distributing anti-draft leaflets during World War I. The justices unanimously upheld Schenck’s conviction and dismissed his plea for free speech.
Writing for the court, Justice Holmes conceded that “in many cases and in ordinary times,” the defendant’s words would have been perfectly legal—but not in the extraordinary times of world war. The key issue, Holmes concluded, was “the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”
Almost a century later, Holmes’s narrowly defined case has been distorted into an access-all-areas ticket for restrictions on freedom of speech. It is dusted off and hauled on stage in many debates involving points of view that someone finds offensive. It got lots of play early this year, for instance, after Islamists massacred the staff of Charlie Hebdo, a Paris satirical newspaper, for the ostensible crime of mocking the Prophet Muhammad.
Second, Holmes himself effectively abandoned his own words.
In later cases, Holmes came down firmly in favor of freedom of speech even when he strongly disapproved of the sentiments expressed.
Justice Oliver Wendell Holmes in 1932 PHOTO: ASSOCIATED PRESS
In 1929, for example, a majority of the justices ruled that a Hungarian refugee, Rosika Schwimmer, should be denied U.S. citizenship because she admitted that, as a dedicated pacifist, she would be unable to take up arms to defend America. In his dissenting minority opinion, Holmes observed, “Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate.”
Third, it hasn’t been the law in the U.S. for almost 50 years.
In their 1969 ruling in Brandenburg v. Ohio, the justices defined the possible limits of free speech more narrowly. Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio, had spoken at a 1964 rally where armed men in robes and hoods burned a cross and talked about “revengeance” against “niggers” and “Jews.” Brandenburg was sentenced to jail for advocating violence under Ohio’s sweeping criminal syndicalism law, which had been passed during the anticommunist Red Scare of 1919.
The justices overturned Brandenburg’s conviction. They held that it could not be a crime under the First Amendment to express a general opinion, however distasteful—even if that opinion included the “mere advocacy” of violence or lawbreaking.
The court replaced Holmes’s “clear and present danger” test from Schenck v. U.S.with a new, stiffer test. The justices ruled that the government could not punish inflammatory speech unless that speech was both deliberately intended to incite and likely to incite “imminent lawless action.”
Finally, in any case, the fire-in-a-theater comparison was always wrongheaded.
Are there legitimate grounds to limit speech because it is too dangerous? The answer is no—once we are clear about what free speech means. Explicit threats against specific targets are not free speech. Nor, I would happily concede, is it free speech falsely to shout you-know-what, you-know-where.
That is why Holmes’s view in Schenck was never persuasive. He used a theatrical example that had nothing to do with free speech to attack something that definitely did. The declarations of antiwar agitators, revolutionaries and even KKK racists most certainly are free speech. They involve ideas, beliefs, passions and hatreds in an argument about what sort of society we want.
There should never be any constraint on that sort of debate, however heated. We always need more speech rather than less to clarify arguments and to let people choose their own idea of the truth.
— Adapted from Mr. Hume’s new book, “Trigger Warning: Is the Fear of Being Offensive Killing Free Speech?,” published by HarperCollins (which, like The Wall Street Journal, is owned by News Corp).
