The first defense given by anti-free speech advocates when arguing for speech limitations is line about “shouting fire in a crowded theater“. The irony is that, if the anti-free speech advocates actually knew the origins of this argument, they would never use it.
The “shouting fire in a crowded theater” line comes from a (in)famous US court case called Schenck v. United States that was determined by the US Supreme Court in 1919. US Supreme Court Justice Oliver Wendell Holmes Jr. wrote the opinion.
Here are some of the facts:
- Charles T. Schenck was the secretary of the Socialist Party of America in Philadelphia during the World War One.
- Schenck organised the printing of 15,000 copies of a pamphlet opposing conscription and U.S. involvement in WW1.
- Some copies of the pamphlet were distributed to men who had been listed in the paper as accepted into the armed forces.
- Schenk was arrested for violation of the Espionage Act of 1917 and convicted for attempting to obstruct the draft.
- Schenck appealed to the United States Supreme Court, arguing that the court decision violated his First Amendment right to free speech.
- The Supreme Court unanimously upheld his conviction and gave birth to the shouting fire in a crowded theater line.
- Schenck served six months in a US federal prison.
Below is a copy of the pamphlet. Imagine what the Australian Human Rights Commission would have done to Shenck! Tim Soutphommasane would have invited complaints on the basis that racial minorities were not equally subject to subscription.
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