“VANCE: You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use…
WALZ: Or threatening. Or hate speech.
VANCE: …the power of the government to use Big Tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this political moment… Let’s persuade one another. Let’s argue about ideas and come together afterwards.
WALZ: You can’t yell “Fire!” in a crowded theater. That’s the test. That’s the Supreme Court test!”
Walz is almost completely wrong. He has no working knowledge of one of our nation’s most important principles. His wanna-be boss Harris is equally ignorant. Despite his recent rhetoric, Trump falls far short too. The fact that the two major political parties are floating candidates of this caliber is proof of a failed legal system.
Matt Taibbi explains the First Amendment test here:
The “You can’t yell ‘Fire!’ in a crowded theater” saw is not only wrong, it’s the most overused anti-speech argument of our era, surpassing even the Karl Popper “Paradox of Tolerance” cartoon that was once meme legend. In 2012, the ACLU’s Gabe Rothman wrote that the “Fire!” bit was “worse than useless in defining the boundaries of constitutional speech.” Lawyers and civil liberties activists are in danger of self-harm every time it’s mentioned. “My head hits my desk every time the ‘shouting fire’ canard is trotted out. I think I have a permanent bruise on my forehead because of it,” says Nico Perrino of the Foundation of Individual Rights and Expression, who adds the damage might prevent him from knowing how many times it’s happened.
The “Fire” saw is one of those unkillable nuggets of received wisdom blurted out by people with at least three drinks in them, repeated as fact by a Vice Presidential candidate. Why? It feels like Democrats are intentionally fumbling the issue:
“‘Fire!’ in a crowded theater” was never law, nor was it ever a “Supreme Court test,” as Walz insisted. The quote is from Justice Oliver Wendell Holmes, who in a 1919 case called Schenck v. United States argued, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” …
“‘Fire!’ in a crowded theater” not only isn’t law, it’s a symbol of one of the darkest chapters in our history, when we passed the aforementioned Espionage Act of 1917 and the similarly heinous Sedition Act of 1918, punishing utterance of “disloyal, profane, scurrilous, or abusive language about the form of government of the United States.” This was when Attorney General Mitchell Palmer terrorized Americans with deportations, mass arrests, even torture. “Clear and present danger” cast a shadow over expression for decades. Not until the 1969 Brandenburg v. Ohio, which established the current standard barring incitement to “imminent lawless action,” was America free of the stain of the case.
The fact that Walz thinks that abomination is still law and also hasn’t corrected his belief that “hate speech” isn’t protected is odd. He first coughed up the latter hairball in a December 2022 interview with MSNBC’s Maria Teresa Kumar . . .
[Added Oct 3]
I often post bona fide First Amendment law on Facebook and then I stand by as commenters armed mostly with ad hominem arguments push back in ignorance, including more than a few lawyers who should know better.
It appears to me that those of you do this are woefully misinformed about First Amendment law. I recommend that you compare Walz’ statement to Holmes’ actual quote. Then I recommend that you take a slow read of a First Amendment textbook to get up to speed. Here (at Eternally Radical Idea) is a summary of the THREE things Walz got wrong about the First Amendment in a matter of seconds. IMO, politicians on the left and their enablers, get these things wrong intentionally because they are wanna-be authoritarians who want control what all of us think and say out of fear that Trump might get reelected. I refuse to sacrifice the First Amendment at the altar of expediency.
When you’ve been defending free speech as long as I have, you’ve heard every bad argument against it about a billion times. And while FIRE and I have responded to these anti-free speech arguments repeatedly over the years, some of them are tougher to kill than a tardigrade. No matter how many times they are rebutted, they just keep coming back up. . .
In the span of about 30 seconds during last night’s Vice Presidential Debate, Minnesota governor and Democratic candidate Tim Walz managed to bring up the top three:
Yes, Governor Walz, you actually can — as many people, including Christopher Hitchens, have literally demonstrated.
What you can’t do is “falsely shout fire in a theatre and cause a panic.” The emphasis is mine, but the quote comes from an analogy that Supreme Court Justice Oliver Wendell Holmes made in the 1919 case Schenck v. United States.
The most irritating thing about this quote is that the parts I emphasized above are often omitted, but they’re the most important because they illustrate the context of the speech in question. The idea is not that the word “fire” is forbidden in a crowded theater, but rather that attempting to incite behavior that will cause people harm (like, you know, making them think there’s a fire and causing them to freak out and stampede) is not protected speech, and actually falls under the very clearly-defined exception to First Amendment called “Incitement to imminent lawless action.”
Still, there’s even more context that makes this particular cliché irritating to encounter. Holmes’ Supreme Court opinion was one that upheld the imprisonment of two people who argued that military conscription was wrong. The Court justified the ban with Holmes’ dubious analogy, which was meant to tie back to the principle that the First Amendment doesn’t protect speech that incites people to physical violence.
But the Supreme Court abandoned the logic of that case in 1925, and rightly seeing that this line of thinking was being used to justify clearly unconstitutional censorship, outright overruled it in 1969. And yet, the cliché endures, even in the mouths and minds of a candidate for the nation’s second-highest office in 2024.
I would add one more thing that is extremely important about Holmes’ quote. First of all here is the entire quote:
But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
Holmes, in this 1919 decision that was obliterated by the 1969 case of Brandenburg v Ohio, was claiming that there are SOME TYPES OF SPEECH that are not protected by the First Amendment. And it is true that one cannot yell falsehoods that will result in imminent injury. I’ll end with what I just now posted on FB:
Contrary to what most Americans are being told by their leaders (especially those on the left), the First Amendment is extremely broad in scope. There are only a limited number of narrow carve-outs.. Everything else is protected speech. Note that there is no First Amendment exception for saying things that aren’t true, for misinformation, malinformation, offensive speech or even outrageous speech UNLESS it falls within one of these narrow carve-outs. That has been the law for decades. When Tim Walz claims otherwise on TV, he is ignorant or lying.
For more on the limited carveouts to the First Amendment, read this Unprotected Speech Synopsis by FIRE. The only carveouts are for:
FIRE advocates for robust free speech rights for all — but certain narrowly defined types of expression do not receive First Amendment protection.
The categorical exceptions to the First Amendment are few, narrow, and carefully defined. To protect freedom of expression, they must remain that way. But they do exist, each for good reason. And as campuses grapple with students and faculty expressing their free speech rights, it’s useful to revisit the boundaries between protected expression and actionable misconduct.
Below, we detail categories of speech that fall outside of constitutional protections.
Incitement
True Threats
Fighting Words
Obscenity
Defamation
Fraud and Perjury
Speech Integral to Criminal Conduct
Note that the following types of speech are protected unless the words also fall into one of the non-protected categories:
Hate Speech
Harassment, unless it is:
is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” By definition, this includes only extreme and usually repetitive behavior — behavior so serious that it would prevent a reasonable person from receiving his or her education.
Nico Perrino of FIRE asks whether hate speech is protected by the First Amendment.
Is Walz right?
“Hate speech” is not protected by the First Amendment?
Let’s ask the Supreme Court …
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” — Matal v. Tam (2017)
“Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate.” Snyder v. Phelps (2011)
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” — Texas v. Johnson (1989)
“The mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name of ‘conventions of decency.’” Papish v. Board of Curators of the University of Missouri (1973)
To cite a few cases …
