The all-purpose, usually wrong, and sometimes mangled yelling-fire-in-a-theater argument: Criticizing a National Park Service decision to issue a permit for an Alt-Right rally at a park in San Francisco Bay, House Minority Leader Nancy Pelosi (D-Calif.) told a local news station: “The Constitution does not say that a person can yell ‘wolf’ in a crowded theater.She’s mixing up the “boy who cried wolf” parable with the cliché about yelling fire in a crowded theater in an attempt to explain why she thinks the First Amendment permits the Park Service to police the content of speech on federal land. But, as Eric Boehm explains, the line about yelling fire in a theater comes from Justice Oliver Wendell Holmes’s opinion in the case Schenk v. United States, and that’s a bad ruling:
“Holmes is ruminating on the the limits of constitutional protections in a theoretical way, not laying down a bright line for when the First Amendment doesn’t apply. Holmes was trying to justify the conviction of two Socialist Party members who had done nothing more heinous than distributing flyers that opposed the military draft. The two claimed a First Amendment right to distribute those flyers, so Holmes concocted a limit to the First Amendment.
“That ruling, including the ‘falsely shouting fire in a crowded theater’ bit, is bad law. It’s been almost universally recognized as such in the century since Holmes wrote the ruling, and the Supreme Court has taken steps to roll back its limits on free speech.
“The only people who trot out the ‘shouting fire in a crowded theater’ line these days are authoritarians grasping for excuses to censor people. That includes Pelosi, yes, but also Feinstein, who has used it to justify keeping conservative speakers off college campuses. New York City Councilman Peter Vallone tried to use it to get Twitter accounts shut down during Hurricane Sandy. Feinstein has used it as an argument for shutting down WikiLeaks; pundits have invoked it when calling for prosecuting the maker of anti-Muslim YouTube videos. ‘Holmes’ quote is the most famous and pervasive lazy cheat in American dialogue about free speech,’ attorney Ken White, a.k.a. Popehat, wrote in a must-read takedown of the Schenck case.
“The modern standard for free speech comes from the 1969 case Brandenburg v. Ohio, in which court ruled that free speech cannot be restricted ‘except where such advocacy is directed to inciting or producing imminent lawless action.’” [Reason]
