Raistlin

Well no trout, Sherlock.

The fact that you can't yell fire in a crowded theater is a point brought up in almost every debate about free speech in the US. And it has annoyed the hell out of me for years. It's always used as a justification for free speech being absolute, which is a position no one ever argues to begin with, during debates over whether a certain form of censorship is good or not. But unless the censorship at issue involves yelling fire in theaters, the point makes no goddamn sense. What the hell does it have to do with whether "hate speech" or Holocaust denial or any other type of speech should be illegal?

The phrase was originally uttered by former Supreme Court Justice Holmes, one of the most overrated jurists in US history (let's just say Holmes voted to uphold forced sterilization laws). The case was Schenck v. US (1919), where SCOTUS affirmed the conviction of Schenck for badmouthing the draft. Literally, that's all he did; he said the draft violated the Thirteenth Amendment, was despotic, and other scathing critiques. He did not advocate violence, law-breaking, or anything else, as the opinion explicitly stated that Schenck's advocacy "confined itself to peaceful measures such as a petition for the repeal of the act."

And that's what people are quoting: a Supreme Court opinion that flagrantly violated fundamental free speech rights by upholding the punishment of simple political advocacy that the government did not like.

I was reminded of my pet peeve when I read this excellent article from a lawyer who also hates people reciting that point. The article goes into the history of Schenck and subsequent cases, including Holmes's full reversal when he realized just what he had helped unleash. It's well worth reading for anyone interested in the development of free speech law in the US.

So enough of Holmes and fires and theaters already. We have thankfully moved well beyond anything Holmes had to say on freedom of speech.