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11 June 2013

Shouting "Fire!"

In conversations about Freedom of Speech, and how it shouldn't be messed with, someone inevitably points out, "You can't shout fire in a crowded theater!" I learned something about that cliché today. Turns out, it comes from a Supreme Court case. Who'd'a thunk it?

So, here's the story. It's 1919, and the country has been at war: World War I. The defendants, a Mr. Schenck and Ms. Baer of the Socialist Party, oppose the draft. They made up about 15,000 fliers and mailed them out to folks who had been drafted. The opinion of the court describes the fliers like this:

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, etc., etc., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country."

The defendants argued that their speech was protected by the First Amendment, but the Supreme Court found otherwise. The really interesting thing, though, is that the court admitted that during peacetime this would have been protected speech.

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.

However, because the nation was at war, the court found that the defendants did not have a right to say what was on their minds. Laws had been passed. (One called the Espionage Act of 1917 and another called the Sedition Act of 1918.) The opinion of the court compared it to falsely shouting "Fire!" in a crowded theater.

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, 221 U. S. 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.

In this case, the "substantive evils" are interfering with the nation's draft. That is, it's evil to oppose being forced to risk your life and to kill for a cause you may or may not believe in. Here's the problem: the Constitution should have trumped both of those laws. Have a look at the part of Article VI that's sometimes called the Supremacy Clause:

This Constitution, and the laws of the United States which shall be made in pursuance thereof ... shall be the supreme law of the land...

So, if there are any conflicts between the Constitution and the laws, then we follow the Constitution. Every time. That's what's supposed to happen. And the First Amendment is crystal clear about what restrictions can be made on speech.

Congress shall make no law ... abridging the freedom of speech ...

"Shall make no law" is unequivocal. There is no wiggle room. There is only one way to understand that. No laws. People can say what they like. That makes people uncomfortable. What about shouting fire? What about libel? Fact is, I don't have all the answers. I know that the conscientious objector was someone that the Founders considered as they were debating and writing the Constitution. Quakers opposed fighting categorically, and I saw that brought up in the notes on the debates. The Founders were interested in preserving the freedom to object.

It is also interesting to note that the Wikipedia article on this indicates that there have been instances of people yelling "Fire!" in a crowd, and in 1913 there was one which resulted in 73 deaths. So the people at that time would have been quite sensitive to that, having just had a deadly example. The thing is, it seems to me that you could build a pretty convincing case for murder charges of some sort in that situation. I think that the public safety aspect could be dealt with, not by forbidding of speech, but by requiring the speaker to suffer the consequences of his actions. That ought to provide the necessary deterrent to keep all but sociopaths from doing that... and sociopaths just don't care, regardless of the outcome. That's why it's considered a pathology.

Also. The "Fire!" analogy sucks. And it's typically misquoted. The next time someone tells me, "You can't shout 'Fire!' in a crowded theater," I may just ask them, "What if there IS a fire?" And that's not what was going on in this case anyway. No kittens will have died as a result of this leaflet. The objection of the court was that it could possibly make conscription harder. So? So what if it did? Isn't robust debate and even dissent a part of freedom? Talking about the wisdom of an imperialistic war that would ultimately cost more than nine million their lives seems like a good thing to me. (Much as I hate to agree with Socialists.) Apparently the Supreme Court had other ideas.

In the end, our Constitution says "Congress shall make no law," which means just what it says. If we want to enable them to do things like make dissent illegal (surely an ill-considered action), then we need to use the amendment process.



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