Ken over at Popehat struck a chord with me the other day with a post he wrote about Oliver Wendell Holmes, Jr.'s famous statement that so many people use as an excuse for their more censorious desires. I'm talking about the tired old saw "You can't shout 'FIRE!' in a crowded theater!"
This has been with me for a while. Since I was a little kid, really. I am absolutely sick and tired of hearing rank little censors wander the streets and internets of my good country using the “You can’t shout 'FIRE!' In a crowded theater!” argument whenever they don’t like what someone is saying and want to keep them from saying it. As if being a censorious twat wasn't enough, there are several additional reasons that folks who use this argument get my dander up:
1.) At it's core, the argument, itself, is not logical.
Hypothetically speaking, let us say that one day, you get pulled over by the police, and are discovered by the police officer to have a massive brick of cocaine in your car.
For medicinal purposes?
If you were to argue your innocence using the logic displayed in the “fire in a crowded theater” argument above, you would attempt to talk your way out of being arrested and charged with drug possession by convincing the police officer that because some drugs, like ibuprofen and Tylenol, are perfectly legal, that the drugs that you have in your car with you also should be.
Here is a real world example that I'm borrowing from the Popehat article, of that argument being used in a more contemporary situation. At the link is an article by a newspaper opinion columnist, calling for the prosecution of a film-maker who made a movie that was critical of Islam. This film caused a lot of Muslims to get very angry and hurt people to show the world how wrong the film was about Islam being violent. The logical path that she took in arguing for this man's prosecution was that since making this movie caused some Muslims to go bug-fuck nuts and kill people on the other side of the world, that he should be held responsible for that, and prosecuted for making the movie. She uses the “fire in a crowded theater” argument to say that, like shouting “fire!” in a crowded theater could cause harm, his words caused harm, and so he should be held responsible.
"Wait, let me get this straight... You want to hold HIM responsible for WHAT?"
The epic logical fail is that she doesn't understand that this guy expressing his opinion through a documentary, and the exclamation from the Holmes quote are two different types of speech that are not related in any way. The actual Holmes quote had him say “falsely;” as in, to falsely shout fire in a crowded theater, with the intent of causing a panic and thus causing harm.
Therefore, Holmes was referring, specifically, to a person who commits fraud with the intent of causing harm; this is not 1st Amendment protected speech.
To shout “fire!” in said theater when there really is a fire is not, nor should it be, a prosecutable offense, even if someone is harmed in the ensuing panic. This is because it is true speech, no matter how dangerous it might be. True speech (or opinion) that is offensive or dangerous, like that in the subject movie about Islam, is not included in the same category as false, fraudulent speech that is intended to harm someone. This is true regardless of whether some type of harm is the result of the true speech (or opinion) or not. That is why I say that this argument is usually used in the most illogical way possible, which is to say that a person wielding this argument is typically using it to point out that some speech is not protected by the First Amendment, and then illogically using that as an excuse to say that the actual speech in question is not protected. Of course, through all of this, they never actually provide a reason as to why they feel the actual speech in question would not be protected under that prohibition. Hence, epic logic fail.
In this case, the argument is about as logical as trying to argue with a cop that you shouldn't be hauled off to jail for having cocaine, because Tylenol is perfectly legal. It is illogical, and makes you look like a moron. Stop it.
2.) The quote, itself, came from a horrible statist prick who no modern person should ever try to emulate or use as an example of how to act.
Seriously, the guy was a B-hole extraordinaire. He is remembered mostly for his efforts to try and get the entire nation to stop talking during the First World War, and more specifically, prosecute and imprison people who spoke out against the draft during that war. In fact, the opinion in which he gave us the “fire in a crowded theater” quote was an opinion in which he voted to imprison a man for pamphleteering against the draft; so Holmes was not a good person.
"I ran out of toilet paper, so I used my copy of the Constitution instead."
I guess my point is that most people aren't taken to using the quotes of horrible people to get their across, generally speaking, and yet they seem to eat up this Holmes quote like it is going out of style. They do so while forgetting entirely that the man who gave us this quote is the last person on Earth that they would really want to use as an example for anything that they want to advocate as good and proper.
Okay, that last statement may have been hyperbole.
3.) There are restrictions on the First Amendment, but they aren’t what you think that they are
There absolutely are restrictions on the First Amendment. No reasonable person would deny that. However, they are generally well-defined and fall under a select few categories:
2.) Incitement to harm
3.) Conspiracy to harm or commit illegal acts
4.) Libel and slander
What? Hurting someone’s feelings isn’t included?
Generally speaking, I like to think of any valid speech restriction requiring two distinct things to make it so:
1.) Harm is caused by the speech:
by this, I don’t mean someone is butthurt. I mean, there is a violent mob fixing to kill some people, or someone's reputation unfairly harmed, or in the case of Holmes’ quote, a panicked crowd trampling people to get away from a perceived threat;
2.) The speech is false and/or is intended to cause harm:
You can lie all you want, but as soon as your lies cause someone to be harmed, you’ve committed either fraud or slander/libel. You also can’t directly foment and encourage, or threaten direct harm to someone, nor conspire with another person to commit harm to another.
This is why bomb threats are not protected speech, and also why you can’t go online and say that you once saw Billy Mahaffey sodomize a chicken when you really didn’t. You can say “Bill Mahaffey probably sodomizes chickens!” all day long because that’s opinion, but you can’t say “I once saw Bill Mahaffey sodomize a chicken!” unless you actually did, because that’s slander.
The most difficult and tricky one above is the incitement to harm item above, because it gets embroiled in semantics and what a “reasonable man” would interpret from the inciter’s speech. For instance, if a man says “we should go get some rope and hang every motherfucker in Washington DC,” the obvious hyperbole and lack of direct incitement would likely allow him to get away with that, because a reasonable man wouldn’t interpret it as incitement to actually go do it.
If that same man says “You, Jim Franklin, should go get some rope, go to Congressman Miller’s house, drag him out of his bed in the dead of night on March 23rd, and hang his ass from the tree in his front yard,” that would be specific enough that a reasonable man might think that he was serious, and so it may not be protected. Notice that I said “may” because this one is so full of grey area that it is really hard to put your thumb on it. This is why the TJIC issue still seems to be continuing to this day, because there is enough gray area that statist thugs can use that gray area to bleed you dry, even when they are obviously wrong.
I think I'll wrap this all up with a quote from Ken over at Popehat, because, being a lawyer, he is much more lawyerly than I, and so speaks from experience and authority when he says:
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.