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Resistance See other Resistance Articles Title: It's Time to Stop Using the 'Fire in a Crowded Theater' Quote Oliver Wendell Holmes made the analogy during a controversial Supreme Court case that was overturned more than 40 years ago. Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known -- yet misquoted and misused -- phrase in Supreme Court history: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." 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. [sic] 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." [sic] The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. [sic] 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. [sic] Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as the final 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 Abrams that 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 -- [sic] Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 2.
#2. To: GreyLmist (#0)
great post- thanks
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