Nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.14
The current judicial view is that the phrase “Nor shall any State” in the Fourteenth Amendment “incorporated” the First Amendment (along with most but not all of the others)15 and applied it to the states.16 According to this view, the First Amendment now reads, in effect, as follows:
Congress and the state legislatures shall make no law abridging the freedom of speech.
Actually, it now reads even more broadly, since the courts have not limited the prohibitions of the First Amendment to the legislative branches, but have extended them to the executive and judicial branches—to any governmental action. So the First Amendment now reads, in effect, as follows:
Congress and the state legislatures, as well as the executive, judicial, and administrative branches of the federal and state governments, shall make no law and shall take no executive or judicial action abridging the freedom of speech.
Thus the first major change—from “Congress” to “government”—has expanded the meaning of the First Amendment and broadened the right to free speech. The second change has narrowed the right, at least as literally written, by excising the word “no,” as in “no law.”
The words “no law”—an absolute prohibition on all legislation abridging any speech—are somewhat understandable if limited to Congress. A democracy can survive if the national legislature has no power to abridge speech of any kind, regardless of how dangerous or harmful, so long as the state legislatures can pick up the slack and enact what reasonable people would agree are essential limitations on some forms of expression, such as disclosing the names of spies, the locations or warships, the plans for battle, the nature of secret weapons, and other matters that must be kept from enemies. But the words “no law”—read literally—make little sense when applied both to the federal and state legislatures, indeed to all governmental bodies, because there really is no rational case for a total and absolute prohibition by any and all governmental institutions on any and all abridgment of any and all possible utterances, especially those directly endangering national security, such as the names of spies and the location of satellites.
The irony is that it is precisely the national legislature—Congress—and not the states that has the most legitimate interest in protecting the national security against unwarranted disclosures. It would have made more sense, absent the fear of excessive federal power, for the First Amendment to have declared that “the states shall make no law abridging the freedom of speech,” but that Congress may enact narrowly drawn laws essential to the protection of national security. In effect, this is the way some courts have interpreted the combined words of the First and Fourteenth Amendments, granting Congress the power to make some laws narrowly abridging the freedom of speech when absolutely necessary to preserve legitimate state secrets, while curtailing the power of the state to censor pornography, defamation, and blasphemy (which were within the powers of the states to regulate at the time the First Amendment was ratified). The courts have recognized that in the modern world, the power to protect the national security from real threats is far more important than the power to protect individuals from being offended by offensive speech. This process of redefining old words to meet new realities demonstrates the interrelatedness of the various provisions of the Constitution. When one “moving part” is changed, the other parts, as well as the whole, are affected.
Even those, such as Justice Hugo Black, who purport to be absolutist for the protection of all speech, have figured out ways to finesse the problem. Consider the case of Cohen v. California,17 in which an opponent of the Vietnam War wore to court a jacket displaying the words FUCK THE DRAFT. Justice Black, the absolutist, joined a dissenting opinion that would have affirmed Cohen’s conviction on the ground that “Cohen’s absurd and immature antic” was “mainly conduct and little speech.”18 Black insisted to his law clerks that no one should “have to see this word” and that displaying it on a jacket was conduct, not speech. His clerks could not persuade him otherwise.19 Under this hypocritical approach, “all” speech remains constitutionally protected, but if you don’t like the content of a particular speech—“Fuck the draft” worn on a jacket—simply call it “conduct” and by sleight of hand (or abuse of language), the constitutional protection vanishes. In other words, First Amendment absolutists—those who claim to read literally and apply absolutely the words “no law … abridging the freedom of speech”—simply declare a genre of expression that they do not wish to protect to be “not speech.”20 Justice Black essentially admitted employing this charade when he reportedly told his law clerk (in the context of the Pentagon Papers case), “Somehow I’ll find a way to call this conduct rather than speech.”21 This word game reminds me of the story of the Theodore White banquet in China that was hosted by Zhou Enlai. The main dish was suckling pig. White, a somewhat traditional Jew, told the Communist leader that he could not eat pig. Without missing a beat, the leader said that in China he had the power to declare what a food item actually was. “It looks to you like a pig. But in China this is not a pig—this is a duck,” he said. So White ate the “duck.”22
According to the absolutist view, obscenity23—including a dirty word used in the context of a political protest24—is not speech. (Perhaps it’s “duck.”) The same is true for other categories of expression that do not—in the view of at least some absolutists—warrant the protection of the First Amendment. I know of no absolutist who would argue that all expression—including words of extortion, falsely shouting fire in a crowded theater, and disclosure of all secrets—is protected by the First Amendment.
Nonabsolutists recognize that these forms of verbal expression are indeed “speech,” but argue that the words of the First Amendment should not be read literally. Some argue that they must be understood in the context of the times when they were written, and they point to restrictions on speech that were widely recognized in 1793. Under this approach, much of what we take for granted today as protected speech—such as blasphemy, truthful criticism of judges, and serious art and literature of a sexual nature—would not fall within the protection of the First Amendment.
Other nonabsolutists reject this “originalist” approach, preferring instead to argue for a “living,” “evolving,” and “adapting” view of the First Amendment (and the Constitution in general), which explicitly acknowledges that courts must have the power to redefine old words to meet the needs of changing times.25
Whichever approach is taken, it is clear that not all verbal and other forms of expression are protected by the First Amendment. There is widespread disagreement over what are appropriate exceptions, as reflected by the divided votes of the justices and the lack of consensus among scholars. All seem to agree with Justice Oliver Wendell Holmes that even “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.”26
From this “shouting fire” paradigm, there flow several general categories of speech that are arguably unprotected because they may result in harms. They include the following:
1. Offensiveness: Expressions that either directly or vicariously offend others, such as sexist, scatological, racist, anti-Semitic, anti-Muslim, anti-Christian, homophobic, and other demeaning or repulsive speech.
2. Fighting words: Speech that is so offensively provocative that it may cause some who hear it to react violently. This includes racial or religious epithets hurled at minorities.
3. Criminogenic speech: Violent sexualized images that may cause, directly or indirectly, such harms as rape or sexual harassment.
4. Disclosure of information that may harm the nation or individuals, including military and diplomatic secrets and other information that the government or individuals may have a right to keep from the public. This may also include disclosure of personal information that may embarrass
individuals.
5. Defamation: Expressions that libel, slander, or harass others, by conveying false or ridiculing information about them.
6. Incitements: Expressions that are calculated to incite others to commit violent or other illegal actions.
7. Disruptions: Expressions that are designed to disrupt speakers or otherwise prevent opposing views from being expressed or heard.
8. Speech that supports terrorism: Speeches or writings that provide “material support” to a designated foreign terrorist organization.27
These alleged harms sometimes overlap, as with obscenity, which may offend and also cause violence against women, or racist speech, which may both offend and provoke violence.
The First Amendment has changed dramatically over the last half century, and I have played a role in bringing about some of those changes. In some instances, exceptions to the First Amendment have been narrowed, while in others they have been expanded. I will begin by exploring the roots and rationality of the “mother” of all exceptions to the First Amendment: “falsely shouting fire in a theater.” This metaphor has been invoked to justify censorship in nearly all of my cases: pornography, revealing state secrets, defamation, ridicule, incitement, fighting words, disrupting speakers, and supporting terrorism. Those advocating censorship generally argue that these exceptions “are just like shouting fire in a theater.” It is important, therefore, to consider whether this paradigm has a strong enough foundation to support the many exceptions to freedom of expression that purport to rest on it.
SHOUTING FIRE: THE MOTHER OF ALL EXCEPTIONS TO THE FIRST AMENDMENT
Justice Oliver Wendell Holmes’s statement that freedom of speech does not protect someone who falsely shouts fire in a theater has been invoked so often, by so many people, in such diverse contexts, that it has become part of our national folk language. It has even appeared—most appropriately—in the theater: In Tom Stoppard’s play Rosencrantz and Guildenstern Are Dead, a character shouts at the audience, “Fire!” He then quickly explains, “I’m demonstrating the misuse of free speech.”28
Shouting fire in the theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian characterized it as “the most brilliantly persuasive expression that ever came from Holmes’ pen.”29 But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is an inapt analogy, even in the context in which it was originally offered. It has lately become little more than a caricature of logical argumentation. From the beginning of my career, both in my writings and in my cases, I have taken aim at this analogy as one of the least persuasive, though most influential, arguments for censorship that ever came from anyone’s pen!
I recently learned that Holmes’s most famous phrase was borrowed, without any attribution, from an obscure and second-rate lawyer, the prosecutor in the case that gave rise to the “shouting fire” analogy. That prosecutor had made the following argument to the jury:
A man in a crowded auditorium, or any theatre, who yells “fire” and there is no fire, and a panic ensues and someone is trampled to death, may be rightfully indicted and charged with murder.
Holmes simply changed a few words and appropriated to himself the prosecutor’s vivid example—an intellectual theft all too commonly engaged in by judges.30
The case Schenck v. United States31 involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia. In 1917 a jury found Schenck guilty of attempting to cause insubordination among soldiers drafted in the First World War. He had circulated leaflets urging draftees not to “submit to intimidation” by fighting in a war being conducted on behalf of “Wall Street’s chosen few.” Schenck admitted that his intent was to “influence” draftees to resist the draft, but nothing in the pamphlet suggested that the draftees should use unlawful means to oppose conscription. As Justice Holmes found: “In form at least [the pamphlet] confined itself to peaceful measures, such as a petition for the repeal of the act” and an exhortation to exercise “your right to assert your opposition to the draft.” Many of the pamphlet’s words were quoted directly from the Constitution. It would be hard to imagine a clearer case of petitioning one’s government for a redress of grievances, which is protected by the words of the First Amendment.
Holmes acknowledged that “in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But,” he added, “the character of every act depends upon the circumstances in which it is done.” To illustrate that truism he went on to say, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.”
He upheld the convictions, finding that the pamphlet created “a clear and present danger” of hindering the war effort—an absurd and counter-factual conclusion that had no support in the trial record.
The example of shouting fire obviously bore little relationship to the facts of the case. The Schenck pamphlet contained a political message—a series of ideas and arguments. It urged its draftee readers to think about the message and then—if they so chose—to act on it in a lawful way. The man who shouts fire in a theater is neither sending a political message nor inviting his listener to think and decide what to do in a rational manner. On the contrary, the message is designed to force action without contemplation. The shout of “Fire!” is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not to thoughtful reflection or debate.
Indeed, in that respect the shout of “Fire!” is not even speech, in any meaningful sense of that term. It is a clang sound—the equivalent of setting off a nonverbal alarm.32 Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a person who pulls a fire alarm in a theater when there is no fire, and thereby causes a panic. But that obviously would have been irrelevant to the case at hand because pulling an alarm is clearly action rather than speech—and it is action with no substantive political message. The proposition that pulling an alarm is not protected speech certainly leads to the conclusion that shouting the word “fire” is also not protected, but it does not support the very different conclusion that circulating a thoughtful pamphlet is also not protected.
The analogy is thus not only inapt but also insulting. Most Americans do not respond to written political advocacy with the same kind of automatic acceptance expected of schoolchildren responding to a fire drill. Not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it. Indeed, one draftee was asked whether reading a pamphlet asserting that the draft law was unjust would make him “immediately decide that you must erase that law.” Not surprisingly, he testified, “I do my own thinking.” A theatergoer would probably not respond similarly if asked how he would react to a shout of “Fire!”
Another important reason the analogy is inapt is that Holmes emphasizes the factual falsity of the shout “Fire!” The Schenck pamphlet, however, was not factually false. It contained political opinions about the causes of war and about appropriate and lawful responses to the draft. As the Supreme Court has repeatedly stated, “The First Amendment recognizes no such thing as a ‘false’ idea.”33 Nor does it recognize false opinions about the causes of war.
A closer analogy to the facts of the Schenck case might have been a person standing outside a theater, offering patrons a leaflet advising them that in his opinion the theater was a fire hazard, and urging them not to enter but to complain to the building inspectors. That analogy, however, would not have served Holmes’s argument for punishing Schenck, because such leafleting is plainly within the protective ambit of the First Amendment. Holmes needed an analogy that would appear relevant to Schenck’s political speech but that would invite the conclusion that censorship was approp
riate. His invocation of “shouting fire” constituted intellectual cheating, designed to reach a result that Holmes could not justify honestly.
The fire analogy is all that survives from the Schenck case; the ruling itself is no longer good law. Pamphlets of the kind that resulted in Schenck’s imprisonment have been circulated with impunity during subsequent wars. It remains to be seen whether Holmes’s flawed “reasoning” will be resurrected in our current war against terrorism, to uphold a statute that has been interpreted to criminalize political speech that is deemed to lend “material support” to terrorist organizations.34
Over the years I have assembled a collection of instances—including my own cases, speeches I have heard, articles I have read—in which proponents of censorship have maintained that the expression at issue is “just like” falsely shouting fire in a theater. The analogy is generally invoked, often with self-satisfaction, as an absolute argument stopper. It does, after all, claim the high authority of the great Justice Holmes. I have rarely heard it invoked in a convincing, or even particularly relevant, way. But that too can claim lineage from the great Holmes.
In the coming pages I will describe a series of pornography cases I have litigated. In several of them, those advocating censorship have cited a state supreme court that held that “Holmes’s aphorism … applies with equal force to pornography.” Another court analogized “picketing … in support of a secondary boycott” to shouting fire because in both instances “speech and conduct are brigaded.” A civil rights lawyer, in a New York Times op-ed piece, analogized a baseball player’s bigoted statements about blacks, gays, and foreigners to shouting fire.35 I wrote an op-ed, disputing the analogy.36 The Reverend Jerry Falwell, in arguing that the First Amendment doesn’t protect a parody of him having drunken sex with his mother, invoked the Holmes example: “Just as no person may scream ‘Fire!’ in a crowded theater … likewise, no sleaze merchant like Larry Flynt should be able to use the First Amendment as an excuse for maliciously and dishonestly attacking public figures, as he has so often done.” In the famous Skokie case, in which I supported the right of neo-Nazis to march through a heavily Jewish Chicago suburb, one of the judges argued that allowing Nazis to march through a city where a large number of Holocaust survivors live “just might fall into the same category as one’s ‘right’ to cry fire in a crowded theater.”37 And some Palestinian students seeking to silence an Israeli speaker at a university offered the false analogy that “defending Israeli war crimes is like shouting fire.”
Taking the Stand Page 15
