The first refuge of the anti-free-speech scoundrel

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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19 Responses to The first refuge of the anti-free-speech scoundrel

  1. 4th thread started by Spartacus today and I am sure it must be incredibly interesting to somebody but seems pointless to me.

  2. Muzzlehatch

    It is an Islamophobic Facist white supremacist dog whistle to the neo nazi thugs comprising the Cats readership,

    he means “shouting allahu akbar in a crowded theater“, ~wink nod~.

  3. Tel

    This would have to apply equally to crowded office buildings. We can do away with all those annoying fire drills by simply arresting that guy who calls the drill.

    That certainly solves a lot of problems.

  4. Oh come on

    I thought the stock response to the ‘free speech = the ability to shout “fire!” in a crowded theatre’ trope was that your free speech rights don’t allow you to perniciously violate the property of others – in this case, the property of the theatre owners and the other ticket holders, who have all had their property devalued due to your (presumably) show-stopping and scurrilous interruption.

  5. manalive

    Now that the institutions have been taken over by the Left they behave the same way the old conservative Right once did.

  6. Muzzlehatch

    manalive
    #2522242, posted on October 13, 2017 at 6:01 pm

    Now that the institutions have been taken over by the Left they behave the same way the old conservative Right once did.

    I think that is being a bit trite and relativist. Can you provide some examples to bolster your case?

  7. the neo nazi thugs comprising the Cats readership,

    Steady on, I may be a thug, but not that kind of thug.

  8. Tel

    Now that the institutions have been taken over by the Left they behave the same way the old conservative Right once did.

    The phrase is “Bambi became Godzilla”.

    http://www.denverpost.com/2010/09/03/when-bambi-becomes-godzilla/

    Unfortunately I cannot find the original link to Walter Russell Mead which is referred to, although I distantly remember reading it.

  9. manalive

    @ Muzzlehatch,
    There are plenty of examples; in my seventy or so years of awareness of general attitudes and discourse, in schools, universities, the media, parliament etc. as well as actual legislation, the Overton Window hasn’t extended to encompass more but merely shifted to the Left and if anything narrowed.

  10. Procrustes

    BrettW, it’s interesting to me. Keep them coming, Sparty.

  11. Muzzlehatch

    @manalive I took your meaning that the Right was once as intolerant capricious and vindictive as the Left are now. I dont go along with that proposition and was inviting a few examples to take us from the general to the specific.

  12. Grandma

    Can you shout “fire” in a crowded theatre if it really is on fire?

  13. manalive

    Muzzlehatch @ 11:10 pm
    It’s true that there were no screeching ‘fright bats’, no marching ‘gay stormtroopers’ fifty years ago when conservative values prevailed (active homosexuals could easily find themselves behind bars or worse) — they are the products of the twitter age.
    The Menzies Government’s attempts to ban the Communist Party and to hamper the foreign travel of prominent citizens like Jessie Street and Marcus Oliphant aside, the list of banned movies books magazines in the ‘50s was as long as your arm; the arrest and charging of eminent composer and conductor Eugene Goossens for importing pornographic material (photographs, prints, books, a spool of film, some rubber masks, and sticks of incense) is just one example of the prevailing conservative values of the time.
    There were also extensive restrictions on the free trade of goods and services during what in fact was corporatist government during the ‘50s and ‘60s; the Liberal/CP states particularly followed suit.
    Probably the biggest mistake of the Menzies Government IMO was 1964 Nation Service Act and accompanying ballot which alienated an entire uncommitted generation that The Left were happy to exploit, the consequences are still with us.

  14. Procrustes

    Man alive

    That point taken – but the challenge is to not slip backwards. A close minded conservative orthodoxy did do those things. However, the danger right now comes from a close minded progressive orthodoxy which dominates academia, the media and many regulators (the AHRC for instance) the political class (Mark Dreyfus being one leading light.)

  15. LGS

    “Anti-free speech” for thee, but not me, according to the leftists.

  16. stackja

    Procrustes
    #2522917, posted on October 14, 2017 at 1:16 pm
    Man alive

    That point taken – but the challenge is to not slip backwards. A close minded conservative orthodoxy did do those things. However, the danger right now comes from a close minded progressive orthodoxy which dominates academia, the media and many regulators (the AHRC for instance) the political class (Mark Dreyfus being one leading light.)

    Dreyfus relation?

    Alfred Dreyfus was a French Jiwish artillery officer whose trial and conviction in 1894 on charges of treason became one of the most tense political dramas in modern French history with a wide echo in all Europe.

  17. Muzzlehatch

    manalive
    #2522647, posted on October 14, 2017 at 7:34 am

    fair call and you were being more specific on free speech. My Dad was a free speech absolutelist and tended to deliberatyely give us banned books. litte red school book, war of the ant etc. he used to let me listen to communist propaganda on the wireless. I gues I just had a sheltered childhood.

  18. Barry 1963

    I believe in limits to free speech. As for those who cite the principle of free speech to justify their utterances, I will accept such if the person has a record of standing up for free speech even when he disagreed with what somebody else said. But those only rally around comments they agree with deflate their justifications. A prime example here is the Australian newspaper.

  19. Tel

    Barry you seem to be struggling with the basic concept here. Just because I support someone’s right to speak sure as heck doesn’t mean I’m automatically going to agree with them. I think Dr Seuss is a slippery socialist attempting to sneak in his indoctrination to kids when they are easily impressionable and unable to properly assess what he is doing to them… but I don’t want to ban any books, because that’s the wrong way to approach the problem.

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