Fire in the Theater

     "Shouting fire in a crowded theater"  is probably the most quoted passage of any from an opinion of the Supreme Court. It is also the most misquoted, the most misunderstood and certainly one of the most regrettable. Its author, Chief Justice Oliver Wendell Holmes, disowned it in subsequent cases, though never in so many words.

      It will come as no surprise that this is a thought prompted by the perverse political spectacle of Donald Trump. He has come closer to turning the principle of free speech on its head than any politician at least since Sen. Joe McCarthy.

    What Holmes actually wrote in the 1919 case of Schenck v. United States was:

     "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.....The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

    What Holmes was trying to say, obviously, was that the freedom of speech guaranteed by the First Amendment has a limit. By way of illustration, he fashioned a metaphor that seemed to draw the line at the most extreme point imaginable: A false statement made under circumstances where the predictable effect would be a panic, a stampede and almost certainly grievous injuries. A prank, but worse than a prank. Unfortunately, people who quote this statement by way of proving that speech has its limits usually drop the word "falsely," turning the statement into a silly parody of itself.

    As it happened, Schenck and his wife had been arrested for distributing pamphlets opposing the World War I military draft and encouraging men to resist it. How Holmes, or any of the other eight justices who joined his opinion made a connection between that conduct and the hypothetical cry of "fire" in a crowded theater, all but defies comprehension.

    There's a similar disconnect when Trump proclaims that a protester at his rally is interfering with the free speech of Trump's partisans and then, in the next breath, implores his followers to "get him out of here" or "punch him in the face." Lest there be any doubt about his meaning, he promised to pay the legal expenses of anyone who took him literally. There was no reason to think he was speaking figuratively.

    When one of those Trump zealots did as requested in full view of God and cable news the other night in Fayetteville, it was the predictable consequence of Trump's own words spoken to an audience of literal-minded fans. What more graphic illustration could there be of the "clear and present danger" posed by repetitive, reckless speech on a national stage? 

     I gather that the man who threw the punch in Fayetteville has been charged with assault and battery, but that the district attorney has considered then declined to seek an indictment against the person who incited the crime. I suppose that's to be expected -- prosecutors, who are elected in this state, are not famous for their political courage -- but still it's an opportunity lost. 

     Charles Schenck's 1918 anti-draft pamphlets were nothing even remotely analogous to "falsely shouting fire."  Donald Trump's "Punch him in the face," on the other hand, is precisely the kind of over-the-line speech that Chief Justice Holmes was trying to tell us lies outside the zone of First Amendment protection. 

      Trump ought to be indicted as an accessory to the crimes committed in his name.  He ought to be sued.  Free speech does have his limits, and he has demonstrated, again and again, where that line ought to be drawn.