“Fire! Fire! Fire!”

The theater was crowded, the danger clear and present...

(Source: Getty Images)

Joel Bowman, checking in today from Houston, Texas...

Welcome to another Sunday Session, dear reader, when we gather at the local/virtual watering hole to puzzle over the myriad dilemmas confronting mankind. 

Earnestly do we pray for wisdom... humbly do we admit our shortcomings... and eventually do we reach for another glass of wine. 

We’re here in the Lone Star State all month, visiting with friends and family. It’s cookout season, as Texans well know, but at over 100 degrees, we wait until the sun goes down before firing up the grill. Even Australians have their limits.

For as long as man has gathered around flames has he joked, bickered, lied, regaled, argued and generally threshed out the problems of the day. 

Which crops to grow and what animals to hunt... when to reap and when to sow... whom to invade and with whom to trade... to go far or alone... to set sail or set up camp... to fight or take flight... to buy or sell... or to tell ‘em all to go to hell!

Most important decisions, whether made collectively or at the individual level, involve some back and forth. Whether wrestling with your conscience or arguing with your mother-in-law, it’s the open exchange of ideas that helps us get to where we’re going... wherever that may be. 

And yet...

No less than twice this past week, your editor heard fall from the lips of angels that most hackneyed trope, “shouting fire in a crowded theater,” as a knee-jerk defense for censorship of free expression. 

In our brief experience, those who invoke that hoary old cry are typically shocked to learn the origins of the phrase... and the twisted irony of its present day application. 

And so, in today’s feature essay, we hope to bring a little less heat and a little more light to the subject at hand...

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Clear and Present Danger

By Joel Bowman

“Fire! Fire! Fire!”

So shouted a prominent public speaker, in a crowded public place, in a debate concerning that most foundational of rights: freedom of speech. There was, as you might already have guessed, no such imminent conflagration on that particular day. The free speaker was referring instead to the “fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes,” as rendered in a case that is as often and confidently quoted as it is misunderstood. 

Allow us, once and for all, to foil this lame canard. 

The case in question, that of Schenck v. United States (1919), was decided in favor of The State. That much is widely known. Here is the key phrase, from Justice Holmes’s verdict:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre [sic] and causing a panic...

The defendants in the case, a group of Yiddish-speaking, German-American pacifists, including one Charles Schenck, were tried under President Woodrow Wilson’s 1917 Espionage Act for circulating a pamphlet urging draft-age Americans to resist induction. The incriminating pamphlet, which you can – and really should – read in full here, carried the headline: “Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!”

All told, 15,000 copies of the one-page (front and back) publication were circulated, in which was quoted Section 1 of the 13th Amendment to the Constitution of the United States of America.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Schenck argued that the draft amounted to involuntary servitude, as “a conscripted citizen is forced to surrender his right as a citizen and become a subject.”

A Dubious Standard

In rendering his verdict, Holmes held that it was the responsibility of Congress to decide when and under what circumstances a citizen may assert his constitutionally guaranteed right to free speech. Wrote Holmes:

Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent. The character of every act depends upon the circumstances in which it is done.

Thus was the dubious “clear and present danger” standard born. Holmes himself sought to redefine the standard later that same year when he dissented in Abrams v. United States (1919). The Justice felt that the court was not applying his own standard appropriately and openly questioned the government’s ability to limit free speech. But by then, the slippery standard was off and racing. It would fly for another half century.

All told, varying versions of Holmes’s “clear and present danger” standard were applied all the way up until 1969, when the court established stronger protections for speech in the landmark case Brandenburg v. Ohio, which held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.” 

“Selective Services”

But let us return to the case of Mr. Schenck et al. for a moment. As it happened, there really was a fire, now known as World War I, and the blazing theater, that of the continental battlefield, circa 1917-19, was very much a crowded one indeed. So was it full, one might add, with all manner of substantive evils. Moreover, it was crowded with young men who were shipped there against their will, conscripted under President Wilson’s 1917 Selective Services Act, with the expressed purpose of facing a clear and present danger. 

The only thing “in danger” as a result of Schenck’s circulation was the efforts of President Wilson, along with his sociopathic propaganda sidekick, Eddie Bernays, to drag an otherwise war-weary America onto a foreign battlefield, a crowded theater in which 116,516 Americans ultimately laid down their lives. 

The irony of the verdict notwithstanding, the “fire in a crowded theater” phrase has come to provide a convenient shield for anyone seeking to shutter speech they find hateful, repugnant or even merely disagreeable. 

In recent years, the amount of information that has been labeled mis- or dis-information, thereby constituting a “clear and present danger” to society... to democracy... to “our way of life”... continues to broaden and expand. Claims made during the panic of the pandemic regarding lockdowns, vaccine efficacy and even the potential origins of the virus itself – many of which have since proven true, or at the very least worthy of further investigation – saw professors banished, scientists ridiculed and journalists publicly excoriated in what can only be described as modern day witch hunts. And yet, it was those pointing the finger who were often found to be the ones having peddled the biggest mistruths of all. 

Recall “two weeks to flatten the curve” and “if you get the vaccine, you’re not gonna get sick. You’re not gonna pass it on.” Remember Joe Rogan’s “horse dewormer” and Francis Collins with his not-so-scientific “we need to orchestrate an epic public takedown” of “fringe scientists” (from Stanford, Oxford and Harvard Universities). 

Absolute Relativists

And yet, in an age where hurt feelings trump inconvenient facts, where victimhood (whether actual or merely claimed) is worn with gushing pride, and where the censorial impulse marches lockstep with the will of the wounded, the very phrase “free speech” has itself been repurposed as a glowing signifier of extremism. Indeed, proponents of open dialogue and the unfettered exchange of ideas are often referred to sneeringly as “absolutists.” Some, like Tesla CEO and unabashed Twitter tease, Elon Musk, even claim the moniker for themselves. 

But the designation is as redundant as it is misleading. One is only a free speech “absolutist” in the sense that one might be said to be a “gravity absolutist” or an “abolition absolutist.” Either one observes the demonstrable effects of the former (i.e. it sucks) or one does not... usually to his impactful detriment. Likewise, one either accepts the inalienable rights of one and all to “life, liberty and the pursuit of happiness,” or one does not. Ultimately, the position of the “quasi-abolitionist” is as untenable as that of the “gravity relativist.”

To suggest that freedom of speech be abridged, even in the case of “clear and present danger,” is to shackle both speakers and listeners to the whim of an interpretive body, a mythical, omniscient majority, pray to hubris and bound to err, to whom it falls to decide what, in fact, satisfies that particular threshold. And it is at precisely that moment when speech is no longer free, but conditional. 

Such a reinterpretation of a basic right, one enshrined in the very first amendment to the Constitution of the United States, no less, represents a daring departure from long recognized notions of natural law. 

One needs only to imagine the power of censorship in their political opponents’ hands to envision the chilling effect of a one party narrative. And if free speech opponents get their way, no such imagination will be required.

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We’re waaay over deadline today, dear reader… so we’ll leave it there for now. But don’t worry, we didn’t forget the Fatal Conceits podcast with Byron King (which we promised you yesterday). Look out for that early in the new week…

Bill will be back with his usual missives from tomorrow, too. In the meantime, enjoy what’s left of your weekend and, as always, feel free to like, share comment and all that good stuff below.

Until next time…

Cheers,

Joel Bowman