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inbonobo · 6 years ago

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#informthyself Why #ShoutingFireInACrowdedTheatre can never be an #argument against #FreeSpeech but it is proof that the proponent is uninformed. #education #edumacation #censorship

To me, this argument (abridged OxfordLearner version) is so obviously flawed that it doesn’t need a rebuttal. That free-speech is paramount is so self-evident that it’s difficult for me to understand how others are (or allow themselves to be) fooled by flawed arguments to the contrary. So when a friend brought it up recently, I suggested that she googles it, (since she did not want to hear me “mansplain” it), but apparently could not find counterarguments.

I don’t want to see my friend suffer. Whenever we argue about something, she gets emotional and hyper and she seems afraid of being proven wrong. She would interrupt me before I even make an argument, sometimes after the first three words in a sentence, comes out with a (usually wrong) idea about what I’m trying to say, then proceeds to fight the strawman thus created ‘til death do us part. OTOH I cannot sit idly while violently absurd arguments are passed as axioms. Since I’m quite sure I’m not the only one seeing the problems with that argument, I could let others explain it to her.

Apart from the video above, here’s what else I could find.

Firstly, just to contextualize, both the US Supreme Court as well as its Canadian counterpart (perhaps the latter more so) have repeatedly ruled that there are limits to free speech. “Shouting fire in a crowded theater” is actually a quote from a unanimous decision of the USSC (”SCOTUS”).

Let’s now look at what we could find about this case. From Wikipedia:

"Shouting fire in a crowded theater" is a popular metaphor for speech or actions made for the principal purpose of creating unnecessary panic. The phrase is a paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draftduring World War I was not protected free speech under the First Amendment of the United States Constitution.

The paraphrasing does not generally include (but does usually imply) the word falsely, i.e., "falsely shouting fire in a crowded theater", which was the original wording used in Holmes's opinion and highlights that speech that is dangerous and false is not protected, as opposed to speech that is dangerous but also true.

Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917 (amended by the Sedition Act of 1918), to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:

<<The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] 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.>>

The First Amendment holding in Schenck was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current Supreme Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are obvious.

To summarize, this came about against a few Jewish socialists who were distributing pamphlets in Yiddish against the draft in the First World War in the USA, and the very judge writing this decision came to a change of heart in a later case.

And there’s more.

Without fail, whenever a free speech controversy hits, someone will cite this phrase as proof of limits on the First Amendment. And whatever that controversy may be, "the law"--as some have curiously called it--can be interpreted to suggest that we should err on the side of censorship. Holmes' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood.

The latest example comes from New York City councilmen Peter Vallone, who declared yesterday "Everyone knows the example of yelling fire in a crowded movie theater," as he called for charges against pseudonymous Twitter @ComfortablySmug for spreading false information during Hurricane Sandy. Other commentators have endorsed Vallone's suggestions, citing the same quote as established precedent.

In the last few years, the quote has reared its head on countless occasions. In September, commentators pointed to it when questioning whether the controversial anti-Muslim video should be censored. Before that, it was invoked when a crazy pastor threatened to burn Qurans. Before that, the analogy was twisted to call for charges against WikiLeaks for publishing classified information. The list goes on.

But those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they'd realize it was never binding law, and the underlying case, U.S. v. Schenck, is not only one of the most odious free speech decisions in the Court's history, but was overturned over 40 years ago.

First, it's important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU's Gabe Rottman explains, "It did not call for violence. It did not even call for civil disobedience."

The Court's description of the pamphlet proves it to be milder than any of the dozens of protests currently going on around this country every day:

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."

The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a "clear and present danger" to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.

Two similar Supreme Court cases decided later the same year--Debs v. U.S. and Frohwerk v. U.S.--also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. (Read Ken White's excellent, in-depth dissection of these cases.) Together, the trio of rulings did more damage to First Amendment as any other case in the 20th century.

In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).

Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as thefinal word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it's "worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech." Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, "the most famous and pervasive lazy cheat in American dialogue about free speech."

Even Justice Holmes may have quickly realized the gravity of his opinions in Schneck and its companion cases. Later in the same term, Holmes suddenly dissented in a similar case, Abrams vs. United States, which sent Russian immigrants to jail under the Espionage Act. It would become the first in a long string of dissents Holmes and fellow Justice Louis Brandies would write in defense of free speech that collectively laid the groundwork for Court decisions in the 1960s and 1970s that shaped the First Amendment jurisprudence of today.

In what would become his second most famous phrase, Holmes wrote in Abramsthat the marketplace of ideas offered the best solution for tamping down offensive speech: "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."

In @ComfortablySmug's case during Hurricane Sandy, that is exactly what happened. Within minutes of sending out his false tweets, journalists discovered he was spreading rumors and quickly corrected the record, sounding the alarm not to trust his information. Regardless, no one was hurt because of his misinformation. The next day, @ComfortablySmug (whose real name is Shashank Tripathi) apologized and resigned from his job as the campaign manager of a House Republican candidate in New York in response to the public's reaction to his actions.

The truth prevailed, not through forcing censorship or jailing a person for speaking, but through the overwhelming counterbalance of more speech. As Holmes said after his soliloquy in Abrams, "That, at any rate, is the theory of our Constitution."

(via TheAtlantic)

A Reminder About Shouting ‘Fire’ in a Crowded Theater

By Susan Kruth March 16, 2015

Few argue that there are or should be no limits to freedom of expression. Last week on The Torch, I discussed the boundaries of several categories of speech that are unprotected by the First Amendment, such as true threats and incitement to imminent lawless action. When arguing that expression that falls into one of these categories should be punished, there is ample case law to cite—still-valid Supreme Court holdings that are directly applicable to the speech at issue. But too often, would-be censors who have nothing else with which to justify their efforts at silencing others fall back on that old standard: “You can’t shout ‘fire’ in a crowded theater.”

Trevor Timm, writing in The Atlantic, and Popehat’s Ken White both implored the public back in 2012 to stop employing what White called “the most famous and pervasive lazy cheat in American dialogue about free speech.” Their message has not spread far enough, and we at FIRE think their thoughtful analyses of the historical context and the ramifications of the quote are worth pointing to.

(..)

In White’s article on the overused phrase, he provides a thorough look at how deeply the Court carved into freedom of expression during wartime and how furiously Holmes tried to backpedal. Finally, in the 1969 case Brandenburg v. Ohio, the Court announced a new standard to govern speech like Schenck’s, setting a much higher bar for what could be punished by the government: speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Regardless of whether one believes that the current boundaries of unprotected “incitement” are too narrowly drawn, the Court’s holding in Brandenburg at least ensures that people voicing opposition to the draft, or otherwise criticizing the government, will not be put in prison for their advocacy.

Post-Schenck, Holmes wrote a dissenting opinion in Abrams v. United States (1919), another speech-restrictive Espionage Act case. Holmes’s writing in Abrams, however, is much more consistent with the current state of First Amendment jurisprudence:

[T]he 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.

As Torch readers may know, the Court has since characterized universities as “peculiarly the ‘marketplace of ideas.’” They are places where we should especially foster “free trade in ideas” and be especially hesitant to censor speech based on concerns that it may potentially, at some indeterminate point in the future, inspire someone to break the law or obstruct the functioning of a government entity.

So when it comes to racist speech, speech that could cause emotional discomfort, or speech that might not conform to vague notions of “civility,” it’s not enough to say simply that these types of expression should be censored because “you can’t shout ‘fire’ in a crowded theater.” As White aptly sums it up:

Holmes quote [stands for] 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.

Click over to Popehat and The Atlantic for more analysis, and check out FIRE’s Guide to Free Speech on Campus to read about how (current!) First Amendment law affects the free speech rights of students and professors on college and university campuses.

Even Jordan Peterson has apparently used this flawed argument while virtue-signalling in the Hill, according to an article published in a Ryerson paper:

What are the outer limits to free speech? Oft cited is the example of yelling “fire” in a crowded theatre. University of Toronto psychology professor Jordan Peterson invoked just this image in a contribution to the Washington, D.C.-based paper, The Hill. Peterson has attracted a lot of media attention by refusing to accommodate requests that he refer to transgendered students in his classes by pronouns other than ‘him’ or ‘her.’ He complains that he will be the victim of hate speech prosecution, like holocaust deniers, if he does not respect these requests. For this reason, he claims, freedom of expression principles are engaged. Free speech “is so fundamentally important that restricting it in any manner carries serious risk”. “Nonetheless,” he writes, “we shouldn’t be allowed to yell ‘fire’ in a crowded theatre.”

There is a lot of confusion here. Surely we should want to encourage folks to shout “fire” if there were flames licking at their feet. This cannot be a limiting principle to freedom of expression. Peterson appears to want to paraphrase U.S. Supreme Court Justice Oliver Wendell Holmes’ famous opinion in Schenck v. United States.

(via Ryerson)

As modern-day statists decry or attempt to explain the Constitution; something they often neither respect nor understand, they use the example about yelling “Fire” in a crowded theater as an example of how the restrictions of government as enumerated in the Constitution are not absolute, are outdated, and sometimes just wrong.

Regarding the absolution of it; I assure you that while the Constitution was designed to be amendable if We the peopleoverwhelmingly agree to do so, it is absolute; or at least it was intended to be. Yet, arresting someone for falsely yelling fire in a crowded theater, believe it or not, does not violate the 1st amendment in any way. It can, and should be a crime without freedom of speech having ever been infringed upon.

Last week in my article Why Can’t I have a Nuclear Warhead, I explained how owning an AR-15 versus owning a nuke is a frivolous argument that people who wish to abandon our Constitution often use. So this week, I’ll do my best to debunk this one as well.

If you are in a movie theater, you may freely say the words fire, bomb, I just farted, or whatever else you may exclaim that could scare the heck out of everyone if said loud enough.

Conversely, if there were a fire, you would be right, and frankly a hero, to warn everyone by yelling “Fire”. This being true, using those words in a theater will not get you arrested as a general rule either when appropriate.

The issue is not the action of exercising your free speech, it’s about creating a hazardous environment for people by virtue of yelling fire or any other method you might use. Because this then creates a panic, and thus a dangerous situation where people could be trampled or otherwise harmed in some way as they attempt to evade a danger that only existed in your sadistic mind. You could pull the fire alarm, not yell anything, and you’d be guilty of the same violation; so the speech used is never the issue.

By creating a panic, you infringe on someone’s right to life, as enumerated in the Constitution, since a panicked crowd becomes a serious health hazard to everyone involved.

Sadly, our Constitution is misunderstood, violated, and under attack every day. As Americans, we should understand that the Constitution was right long before we even fully understood how to implement it. We were slave owners declaring all men are created equal with certain unalienable rights, after all.

The Constitution has never been the problem—it had it right all along. People violating it has, and always will be. So let’s not let the left destroy it with false premises, logical fallacies, or misdirection. We the people should take the time to read, understand, protect, and promote the Constitution responsibly. Our liberty depends on debunking such false arguments. Hopefully, as people like me explain away them, you’ll be better prepared for your next debate.

(via logicallib)

Please Stop Using the ‘Fire in a Crowded Theater’ Metaphor MARCH 4, 2013 BY ED BRAYTON

After the last meeting of CFI Michigan, a bunch of us went out to a restaurant as we always do, and sat and talked. In a conversation about some First Amendment issue, one guy trotted out the trite and false “you can’t shout fire in a crowded theater” analogy (which was not even remotely analogous to the subject we were discussing). If you’ve ever used this argument in arguing for some particular restriction on freedom of speech, please stop.

First of all, not only is it virtually never analogous to the argument being made, it wasn’t even remotely similar to what was going on in the very case in which it was invented. The full statement — “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” — comes from a Supreme Court ruling in 1919 in a case called Schenck v United States and it was written by Justice Oliver Wendell Holmes, a first ballot inductee into the Vastly Overrated Hall of Fame.

This case is also where the phrase “clear and present danger” comes from. That was the standard that the court established for when the government could suppress the free speech rights of citizens, until it was overturned in 1969. The case involved Charles Schenck, the secretary of the Socialist Party of America, who had printed up and distributed pamphlets during WWI urging people not to comply with the draft. Those pamphlets argued that the draft violated the 13th Amendment ban on involuntary servitude (and he was right, in my view).

Schenck was arrested for this and convicted of violating the Espionage Act of 1917. He appealed all the way to the Supreme Court, which handed down an appalling 9-0 ruling upholding his clearly unconstitutional conviction. Holmes’ written opinion said:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic…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 important to note here that the analogy of shouting fire in a crowded theater was utterly absurd even when it was invoked, since nothing in the Schenck case was even remotely similar to such an act. The most that could possibly be said is that Schenck might be able to convince a small number of people to defy the draft, with the impact on the war effort negligible at the very most. No one was put in danger by his words, imminent or even in some far-fetched string of causation.

The metaphor was absurd in the very case for which it was invented; it is even more absurd in most other cases. And it’s almost always used to justify some totally unrelated restriction on free speech, as if the mere fact that the court recognizes some narrowly defined exceptions to the First Amendment somehow justifies the particular exception the person arguing wants to carve out. The fact that a right is not absolute (no right is, of course) is not an argument in favor of any specific exception that someone wants to argue for. So it’s just an illogical argument to make all the way around.

For nearly a century now, our discourse on constitutional matters has been haunted by a ridiculous analogy that was meaningless when it was created and even more meaningless now. It’s time to put this tired cliche to rest, once and for all.

(via Patheos)

Elsewhere, in a Second Amendment site, the Schenck case is fully explained and the reasoning behind the First Amendment protection is applied to the 2nd one. YoExpert briefly explains both the Schenck and the backpedaling case. Volokh finds issues with the word falsely. On Quora, a few lawyers explain it as it pertains to current criminal law in the US, and the general limitations on free speech.

In conclusion:

This is one of the most egregious example of Supreme Groupthink, an error SCOTUS partially corrected shortly thereafter.

There is no question that the law in both USA and Canada restricts free speech (nobody denies that), the question is whether that is justifiable or not. In my view (and that of others) it’s not.

Some arguments are semantic and thus weak, focusing on the fact that the phrase is often misquoted with “falsely” omitted. I think that’s a waste of time. Surely the word “falsely” is important, but the whole idea does not instantly become correct or valid simply by adding “falsely”. It’s still invalid.

A lot can be said in support of one’s right yell “fire” in a crowded theater. Maybe one day I will. In the meantime, one can go through the above and come up with their own argumentation.

#shouting fire in a crowded theater #free speech #censorship #first amendment #charter of rights and freedoms #politics #justice #scotus #long reads

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