I’m not trying to single out one poster on the earlier censorship thread, but I just see the following so often that I’ve actually already written a column on it and I think it worthwhile to rectify it here. The poster stated:
BTW, the US Supreme Court has pretty clearly stated that things like shouting “fire!” in a public place or inciting violence are not protected speech.
No. The Supreme Court never said that. You can shout “fire” in a public place…providing there’s a fire. What Oliver Wendell Holmes stated was that the First Amendment would not protect someone who FALSELY shouted “Fire” in a crowded theater in order to start a panic.
What is often glossed over is that Holmes’ oft’ misquoted statement was part of a decision that supported a staggeringly grotesque abuse of free speech. Holmes’ statement came about because of “Schenck v United States” (1919). Charles Schenck, secretary of the Philadelphia socialist party, distributed a pamphlet to draftees stating that, in his opinion, the draft was a violation of the anti-slavery 13th amendment and that, if they agreed with him, they should seek redress of the law. That was all he did. He didn’t urge violent reform. He didn’t cause a panic. To the best of my knowledge, he didn’t even convince one person to avoid the draft. But for his “crime,” he was found guilty under the Espionage Act of 1917 and sentenced to FIFTEEN YEARS IN JAIL. Nor was that the maximum sentence: He could have gotten up to twenty years and a $10,000 fine.
Nor was he alone. Hundreds of people were arrested, tried and jailed under that Act, some for doing nothing more than making speeches protesting the US getting involved in the World War.
Schenck’s case was appealed to the Supreme Court and, horrifically, they supported the findings. Holmes, writing the majority opinion (in which the “fire” analogy was used) felt the government was within its rights–at time of war–to jail dissenters since they presented (and here was the first use of the phrase) “a clear and present danger.”
Oh, and the Espionage Act is still on the books. Nixon tried to use it to jail Daniel Ellsberg for leaking “The Pentagon Papers.”
So Americans may want to think twice about trotting out that Holmes quote when they consider that it had nothing to do with theaters, fire, or panic, and instead was used to buttress the depriving of Americans their freedom simply for speaking their mind.
PAD
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Inter Arma Enim Silent Leges
Well, consider me singled out! 😉
Okay, so I left out the whole “Fire!” thing being in a NON-burning public place and Holmes’ quote has nothing do do with anything that it says it has to do with.
My question there is, so what? As far as I can see, the way the quote is worded, it is correct. Was it horribly misapplied in the actual case? Apparently, yes. (And, seriously, thanks for the history lesson. Very interesting and informative. I love our moronic legal system.)
Whether the original context was terrible or not, my intent in using it is not only true, but fair. I realize that you’re only asking for the proverbial “second thought,” PAD, but wouldn’t you agree that, historical context aside, it is a convenient example of something outside of the bounds of free speech?
Eric
Completely off topic but check out this to see George Dubyas Hotmail Inbox: http://www.albinoblacksheep.com/text/bushmail.html
Its mildly amusing.
Ferg
Peter David: What is often glossed over is that Holmes’ oft’ misquoted statement was part of a decision that supported a staggeringly grotesque abuse of free speech.
Luigi Novi: Don’t you mean a staggeringly grotesque denial of free speech, rather than an “abuse” of it? An abuse of free speech sounds like the person making the speech going over the line as far as what’s not allowed, and violating the Clear and Present Danger clause.
And yes, it’s been said that the United States was the closest it had ever been to a police state during the Woodrow Wilson years. In addition to the aforementioned jailing of those against the war, Wilson gave his postmaster general broad censorship powers to suppress all mail that was anti-British, pro-Irish, or that in any other tenuous way might, in his view, threaten the war effort. And it wasn’t just political speech. Film producer Robert Goldstein spent TEN YEARS in prison for producing The Spirit of ’76, a film about the American Revolution, because the British, who were our allies during WWI, were naturally depicted unfavorably.
Ten years.
For making a movie about one’s own country’s Revolution.
Jamie’s mention of Cicero’s quote is interesting. Lincoln suspended habeus corpus during the Civil War, and a month later, the Supreme Court ruled it unconstitutional for him to do so, and this was over fifty years before Wilson. Perhaps this helps demonstrate how the pendulum swings with regard to things like the Supreme Court and the Constitution.
On a similar note, I’m currently reading Lies my Teacher Told Me. A great book about the real history versus what we’re taught in schools. It mentions Woodrow Wilson and the jailing of dissenters. Very good and worth checking out.
“The price of Freedom is eternal vigilance.” When I add up how often we have to defend the basic rights guaranteed 200 years ago, it makes me worry about human nature.
Peter, I’m entirely with you on censorship. Everything is expression, even if only 1% of people aren’t horrified and repulsed by it. We need to have freedom of expression, no matter (or rather, because of) what it exposes us to.
However, I think that there is a USSC judgment that we need to consider, and it’s not the “Fire in a crowded theatre” one, it’s the “Noisy Truck” one. That all noises that are created are not actually expression. The cases are RAV v City of St Paul(1992), which had precedents in Chaplinksy vs. New Hampshire. (1942)
What this judgement says is that while everyone should have unfettered freedom of expression not all “speech” is expression. I think it’s a hard distinction to make, but unfortunately, it’s already on the USSC books…
Londo
Interesting – especially with “Li’l McCarthy” John Ashcroft’s latest:
Ordering US attorneys to report judges who impose lighter-than-guideline sentences.
So much for judging a case on its merits.
A right-wing creature such as myself can admit that there were horrible things back in the day… and back further, and occasionally now.
Basically stamping out someone’s rights in such extreme and horrific manners. I am a conservative. I want the government getting less involved in my affairs and in the affairs of my speech, not more.
I’d also don’t believe we have the same intensity of free speech issues concerning the government and I don’t believe so much in a slippery slope application.
I also believe in the addage “don’t yell out ‘fire’ in a crowded movie theatre” and “no one and nothing will protect you if you do”
Ah. The Supreme Court, the be-all and end-all of the protection of law. The greatest and most harcore protectors of the establishment they are. But… they legislate. They overstep their bounds. They bìŧçh-šláppëd Schreck. They extended a portion of the Constitution regarding privacy to wrap around issues some consider to be literally life and death in Roe V. Wade. It doesn’t have to mention babies and mothers to mean babies and mothers apparently.
They upheld affirmative action because of a so-called noble cause: diversity. They legislate too much. They overstep their bounds too often.
I believe that we have the greatest system in the world. It is the closest to perfect we’ve found so far. It’s also flawed. It is so far from perfect you could fit a 1985 Delta Oldsmobile between the gap of what it is and what is perfect.
Mind you, I suspect the cause of this flaw is human nature.
CJA
Whether the original context was terrible or not, my intent in using it is not only true, but fair. I realize that you’re only asking for the proverbial “second thought,” PAD, but wouldn’t you agree that, historical context aside, it is a convenient example of something outside of the bounds of free speech?
The reason it’s outside the bounds of free speech is because it has nothing to do with free speech. That’s why it’s such dreadful law. Schenck v. US turns on free speech, but Holmes hot-glued an example that is irrelevant. He might just as easily have said the First Amendment doesn’t give you the right to kill someone.
When one falsely shouts “fire” in a crowded theater to cause a panic, one is trampling on *other people’s rights.* Right of property, right of exchange, right to do business. The people who paid to see the movie have a right to do so. The theater owner has a right to put on his show. By deliberately causing a panic, you are infringing on *those rights.*
The justice system pretty much comes down to eye-for-an-eye. You deprive someone of their rights in some way, and you are deprived in kind. Schenck threatened the rights of no one. In return, he was deprived of his right of free speech and right of liberty.
I’m saying that you never *should* put historical context aside. Instead people should be aware that glib metaphors are often used to excuse deeply unfair acts.
And again, Eric, please realize I wasn’t dumping on you. It’s just that I had *just* written a column about how I hear this all the time, and then presto, you brought it up, and I thought, “Y’know what? Time to put that one to bed.”
A better Holmes quote to use: “Your right to swing your fist ends at the other man’s nose.” Too bad he participated in bloodying Charles Schenck.
PAD
The 😉 in my previous post was supposed to show that I wasn’t taking it personally at all. I didn’t even bat an eye (except by reflex, but that happens every couple seconds for me!), seriously. No worries.
I guess I still consider it a handy thing to point out, because I have to use that type of example at school all the time JUST to explain to students the concept that “not all noise/words are expression.” However, I see where you’re coming from, and like I said, I really appreciate the info. Very interesting.
Heading to Chicago now…
Eric
The important question, however, is do i still have the right to yell “Theater!” in a crowded fire?
If it’s GIGLI, the people in the fire might opt to stay in it.
It’s interesting to me that everyone is ignoring the fact that there is, literally, a TON of legislation preventing free speech. Things like libel and slander are just the start of it. The point is not whether the right to free speech is a blanket with which to cover any form of expression; the question is whether or not the form of expression in question is free speech.
In this example, in particular, there seems to be no question. The artist who created the book had a right to do so. The publisher had a right to publish. The distributor had a right to distribute. Apparently, according to the prosecution, the rights stopped at the point of sale.
Why? Because it was a comic shop? Because it was close to a school? Are we going to start drawing up districts where it’s OK to exercise certain rights in certain areas but not in others? It’s bad enough that we’re seeing the most anti-conservative laws of this century being passed by governments that claim to be conservative! Conservatives supposedly stand for ‘less government’, and yet the Bushies have created one of the largest government organizations in history: The Department of Homeland Defense. The governer of New York, a Republican Conservative, has just helped to pass into law a bill that prohibits smoking in public establishments, even in bars. And Ashcroft won’t be happy until he has the entire country under his thumb.
I remember a time when Republicans and Conservatives stood for fiscal responsibility, and less government. Now it seems that they stand for tax cuts, and as many laws as it takes to make everyone behave the way you think that they should.
The Supreme Court functions best when it is made up of a diverse group of responsible judges that are as bipartisan as humanly possible. The current crop, which is willing to stomp all over state’s rights when it suits them (as the majority did with the election results in Florida), and then wave them like a banner (as the dissenters did regarding the sodomy laws in Texas). It’s not a matter of stacking the deck with liberals, or conservatives, or whatever. Ideally they’re all moderates (real moderates) and they base their judgments on the Constitution alone.
Did I stray too far off topic on that one? 😉
Phinn, there are already numerous districts in this country where laws are applied differently than in, some cases very nearby, neighboring “districts.”
In one county the sale of alcohol is perfectly legal, in another it isn’t. For the majority of the country, prostitution is illegal, yet in areas of Nevada (unless this has changed) it isn’t.
In most of my state, Sunday alcohol sales are still not allowed (Why? I don’t even drink and this bothers me). You can drive 70 on some roads, but not others (for some very good reasons, in most cases). You can own real estate, but you can’t start a tire burning facility in a “Residential” neighborhood (zoning ordinances).
I am not at all agreeing with what happened to Jesus (I am as deeply upset as anyone), but the fact is that laws are applied differently in different areas all the time. In my opinion, that isn’t what this case was ever about (even if the prosecution tried to make it appear so).
I agree that anyone should be able to create anything they wish, and people should be able to enjoy whatever they are into, as long as everyone involved is fully knowledgeable and consenting. Where is the harm? And why should it be my (or anyone else’s) business?
Ferg White: Completely off topic but check out this to see George Dubyas Hotmail Inbox: http://www.albinoblacksheep.com/text/bushmail.html
Luigi Novi: LOL! One minor nitpick: Hotmail Inboxes arrange mail from most recent on top to oldest on the bottom. That joke webpage arranged it in the opposite order (because it knows readers prefer to read from top to bottom). 🙂
Luigi Novi: LOL! One minor nitpick: Hotmail Inboxes arrange mail from most recent on top to oldest on the bottom. That joke webpage arranged it in the opposite order (because it knows readers prefer to read from top to bottom). 🙂
Actually, you can force Hotmail to put them in ascending order by date by clicking on the “Date” header. Another click restores the newest-first.
I agree with PAD entirely on this subject. My other favorite Holmes quote compared convicting innocent people to using a bayonet to “urge” soldiers to advance. I’ve always believed that equating the conviction of innocent people to “can’t make an omelet without breaking eggs” was a sure sign that the man should never have been allowed on the bench, no matter how smart he was.
While we’re on the subject of nitpicking, though, the comment about Ashcroft requiring US Attorneys to report judges who sentence below the guidelines is completely unfair. The Federal sentencing guidelines are the legal requirements passed by the Congress. A judge who sentences outside of the guidelines without a valid (and stated on the record) reason is himself violating Federal law. I don’t think “judging a case on its merits” really requires a judge to violate his duties, does it? We have a similar problem in state court, where the judges refuse to convict people for drunk driving according to the legal limit. Nullification isn’t any better when it’s done by judges than by juries.
David – not to nitpick, but I thought that Ashcroft was coming down on judges who did not impose the maximum sentence available under the law.
If the judges were imposing less than the minimum required sentence, I basically agree with your point… if on the other hand, the judges are imposing sentences within the guideliness but less than the maximums, I do have a problem with Ashcroft mandating maximum sentencing.
If the laws allow any flexibility in sentencing, why must there be a mandate that every crime must receive the maximum sentence allowed by law?
If so, change the law to require a single sentencing guideline “x crime = 12 years in prison, no parole until 12 years”… then there’s no flexibility at all.
The truth (re: sentencing guidelines) is somewhere in the middle. The whole point of sentencing guidelines, when they were passed in the 1980s, was to bring uniformity to federal sentencing. “Guidelines” is almost a mischaracterization, as they tend to put forward fairly limited ranges in which sentences should be imposed. The judge can enter a sentence below what the guidelines would impose, if he has a good reason (often involving a plea agreement with the US). The DOJ is maintaining that the Federal judges have been, if not abusing, at least stretching their authority. It’s a little bit of a power struggle between the judges and the Federal prosecutors (being a prosecutor, I tend to sympathize with the DOJ). In all fairness, I can understand why the bench would be protective of their prerogatives, but by the same token I don’t think it’s fair to paint Ashcroft as Lord Voldemort. At least, not just based on this episode.
God knows I am no fan of Holmes. But it is only fair to point out that later in the same year, in Abrams v. United States, he reversed himself, in a dissent, and voted to overturn the Espionage Act.