Debunking Another First Amendment Myth

It’s time to take look at another “fact” about the First Amendment that everybody knows, but that just isn’t true.

Almost everyone in this country knows that our right to free speech is limited by the fact that you can’t yell “fire” in a crowded theater. You’ve probably heard that claim hundreds of times.

Because so many people accept that idea, politicians love to use it as an excuse to violate our other rights as well. Sen. Chuck Schumer (D-N.Y.) loves this example so much that he uses it to justify violating both the First Amendment and the Second Amendment. In a 2012 Washington Post column, he wrote:

“No individual right is absolute, after all. While the First Amendment protects freedom of speech, no one has a right to falsely shout ‘Fire!’ in a crowded theater, nor to traffic in child pornography. Likewise, the Second Amendment’s right to bear arms also comes with limits.”

But is he right? Is your right to free speech limited by the fact that you can’t yell “fire” in a crowded theater?

 (Photo: LEON NEAL/AFP/Getty Images)
(Photo: LEON NEAL/AFP/Getty Images) 

The short answer is, “Absolutely not.”

As I pointed out on TheBlaze Radio’s Chris Salcedo Show this weekend, the restriction on yelling “fire” in a crowded theater has nothing to do with the freedom of speech:

The problem in this example isn’t the content of your speech. People in theaters aren’t uniquely offended by hearing the word “fire” for some reason. The problem is that when you yell “fire,” it is going to cause chaos and will probably get someone hurt. In that situation, you aren’t being punished for your speech; but for creating a commotion that violated the rights of other people.

This might seem a little bit like semantics but it’s not. It’s hard to overstate how important it is to understand that penalties for yelling “fire” in a theater aren’t limits on free speech. To see exactly what this kind of reasoning can lead to, consider the fact that it was originally used in a Supreme Court decision to justify putting an American citizen in prison for criticizing the government.

During World War I, Charles Schenck mailed leaflets to a handful of men who had been drafted to serve in the military. The leaflets made arguments against the war and encouraged these men to speak out against the draft. President Woodrow Wilson was desperate to silence any dissent against American involvement in WWI so Schenck was prosecuted for this horrible “crime.”

Image source: Shutterstock
Image source: Shutterstock 

This case made it all the way to the Supreme Court where it was known as Schenck v. United States (1919). It was in his opinion for that case that Justice Oliver Wendall Holmes first made the argument that you can’t falsely yell “fire” in a crowded theater. And as Kevin Gutzman and Thomas Woods point out in their book, “Who Killed the Constitution”:

“[I]t was on this flawed basis — we suppress shouts of ‘fire’ in crowded theaters, so we can also suppress antiwar publication — that Justice Holmes justified federal criminalization of unflattering comments about the U.S. government.”

Putting people in prison for speaking out against their government is, as Vice President Joe Biden would say, “a big f*&$in’ deal.” I can’t think of a time when it’s more important for us to have a free and open political discourse than when our politicians are considering taking our nation to war and putting countless lives in danger.

The message to the country from the Schenck ruling essentially boiled down to, “If the ruling class in Washington, D.C. decides that this country is going to war, then the rest of you peasants need to shut up and accept it.”

It’s stunning. And it was all made possible by the faulty argument that yelling “fire” in a crowded theater is a limit on your right to free speech.

Most of the examples that people like to use to justify limits on free speech – yelling “fire” in a crowded theater, libel laws, slander – have nothing to do with limiting your ability to speak your mind. Those laws don’t put limits your rights. They prevent you from violating the rights of others. There is a big difference.

We need to understand that difference if we want to remain free. Otherwise, our politicians will keep using arguments like that to steadily chip away at our rights until there’s nothing left.

Chad Kent is an author and speaker with a unique style that makes the Constitution simple and fun. Listen to Chad every Saturday during The Chris Salcedo Show on TheBlaze Radio and visit his web site at www.ChadKentSpeaks.com.

TheBlaze contributor channel supports an open discourse on a range of views. The opinions expressed in this channel are solely those of each individual author.

1 Comment