EDITOR’S NOTE: Stories that I write which pertain to law should NOT be used and considered as legal advice. I am not an attorney, nor can I give you legal advice. I am not licensed to practice law in my jurisdiction. Everything in this article is for informational and educational purposes only. All non-licensed material is used for fair use criticism and educational purposes. Furthermore, this article contains material that may be offensive to some readers.
In my pre-adolescent days, I instigated fights in school by saying something that disrupted others, whether offensive or simply annoying. After being confronted by classmates and seeing firsthand vandalism in my school, I decided to get into and practice law. The reason is so I can understand the fundamentals of our country. Obviously now, that’s in the past. But if you’ve spent time online, you might not know that. We all have basic standards on what to say and not to say in public. But almost everyone is wrong about those particular standards. But the people in government who perhaps should know better do not know better. An example of this is New York Governor Kathy Hochul’s stating “I’ll protect the First Amendment any day of the week. But you don’t protect hate speech. You don’t protect incendiary speech. You’re not allowed to scream “fire” in a crowded theater. There are limitations on speech.” The only takeaway from this statement is that Hochul does not understand free speech. People do not have general knowledge of the First Amendment. Which is understandable, but can lead to conflict. But in this article, I’ll explain some common misconceptions about the First Amendment. As well as providing clarification to what people think.
Shouting “Fire” in a Crowded Theater.
While many people believe that you cannot shout “fire” in a crowded theater, you generally can. Generally speaking, it’s legal. This First Amendment misconception simply will not die out. The origin of this stems from an opinion from Supreme Court Justice Oliver Wendell Holmes. He wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Throughout the decades, Americans have decided you cannot yell “fire” in a crowded theater. Justice Holmes never qualified that the theater had to be crowded. He simply said that shouting “fire” when there was no fire and causing panic, was not protected speech.
During this particular time, deadly fires in theaters were common. It was standard practice that due to lax regulation when all the seats in the theater were sold out, owners would seat people in the aisles and stairways. Sets and props used to be made of flammable materials, lack of ventilation, and theaters rarely marked exit doors. In 1903, at least 602 people died in a fire in Chicago’s Iroquois Theater, which notably had one entrance. Chicago Building Codes required separate staircases for every balcony, but the architects who designed the Iroquois disregarded those rules, and the theater had one staircase. When the fire broke out, the building was completely crammed, aisles and stairways were full of people, and patrons ran through each other in order to reach the exit. Nevertheless, the Iroquois Theater disaster was not a unique event at the time. There were so many theaters that caught fire. People were genuinely afraid of crowded spaces. This is what provided context for when Justice Holmes wrote his opinion in the 1919 Case of Schenck v. United States. Surprisingly, the facts of the 1919 Schenck Case bear no resemblance to a crowded theater. Charles Schenck was a Socialist who attempted to distribute thousands of leaflets encouraging people to evade the World War I draft. Schenck would then be charged with violating the Espionage Act by conspiring to cause insubordination in the military and Navy. The Supreme Court upheld Schenck’s conviction and the constitutionality of the Espionage Act, finding that Congress could regulate speech that created “A clear and present danger.” Schenock simply sent leaflets to recently constricted soldiers suggesting that the draft was a form of involuntary servitude in violation of the Thirteenth Amendment. Justice Holmes wrote that “The widespread dissemination of the leaflets was sufficiently likely to disrupt the conscription process.” That is what gave rise to his so-called “clear and present danger.” Justice Holmes conceded that the letter may have been constitutionally protected in many places in ordinary times, but determined that the character of the writing “depends on the circumstances which is done.” Therefore, Holmes held “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.” In doing so, Holmes compared the leaflets to falsely shouting “fire” in a theater, provoking a panic, the type of speech that he thought could be regulated.
The clear and present test was favorable to the government, particularly during the war when the court gave the government leeway to restrict speech. But Justice Holmes realized his analysis of Schenck could be abused. Within a year, he changed his mind. In another case Abrams v. United States which also involved anti-war activists, the Supreme Court upheld the conviction of Russian immigrants who were charged with violating the Sedition Act. This time however Holmes dissented from the majority. He advocated for a much more rigorous test, arguing that the government should only be able to punish speech if there’s an imminent danger that it will bring about substantive evils. But Schenck’s clear and present test was eventually overruled 50 years later when the court replaced it with the imminent lawless action test, which protects a broad range of speech. Though you may remember it from the Brandenburg Incitement Test. Which has been considered relevant. So, Holmes’ analogy was not only imperfect but incidental in the case that created it.
The Problem With a Fire in a Burning Theater Analogy.
The problem with a fire in a crowded theater analogy generally speaking is that people believe that it stands for the proposition that you can regulate almost any bad speech. But it was a terrible analogy from the very inception, and it was used to regulate speech that was clearly protected. The number of situations in which you can actually yell “fire” in a crowded theater outnumbers those in which you can’t. But that phrase is judged by the same First Amendment standards that we use to judge every other kind of speech. The question that many people may have after is, did you intend to cause panic and possible injury? If not, then there shouldn’t be any problems. But that leads to another misconception of free speech.
“Hate Speech is Not Free Speech.”
I’m sorry, but it absolutely is. Things that are hateful understandably make people uncomfortable, which is why even good actors such as Lou Diamond Phillips have bad takes. In April, Phillips tweeted “Let’s all remember that hate speech is not free speech. It comes with a cost to real lives. Let’s make kindness our default setting.” This is a nice statement, but it is wrong. According to the Supreme Court, Hate Speech is Free Speech. Unfortunately, the Supreme Court protects Hate Speech and even hateful expressions. For example, the court ruled that the Westboro Baptist Church could protest at the funerals of dead soldiers. Signs could be held that read “Thank God for dead soldiers.” As well as homophobic slurs. Similarly, the court struck down a St. Paul ordinance that made it a crime to place a burning cross or swastika anywhere. “In an attempt to arouse anger or alarm on the basis of race, color, creed, or religion.” The court also ruled that Nazis could march through the streets of Skokie, IL. A town where many Holocaust survivors lived. In other words, hate speech, as a part of free speech is settled law that won’t be overturned anytime soon. But if the concept of the First Amendment having no protections for hate speech isn’t necessarily an American law, then why do people believe that Hate Speech is illegal? This might be because of how European countries regulate speech. Those countries generally don’t have the same kind of First Amendment protections. After the horrors of World War II, many European countries passed laws caramelizing speech that incites hatred or advocates genocide against certain groups. This is certainly a point of controversy in the United States where many people wish that First Amendment protections did not attach to what they consider to be hate speech. You might not like it, but the solution to hate speech has traditionally been in the words of Justice Louis Brandeis. “More speech, not enforced silence.” It might not please everyone, but it’s an easier principle to apply rather than a ban on hate speech. From a legal perspective, it is difficult to constitute hate speech. But for the time being, if you believe that the government should be able to regulate hate speech, I’m allowed to call you uneducated.
“Private Corporations Are Violating My Privacy!”
The free speech clause of the First Amendment prohibits “The government from abridging the freedom of speech.” It does not prevent private corporations or people from censoring speech. Whenever people are complaining about Section 230, the internet, and protecting big corporations, they’re not upset about Section 230. But rather the First Amendment itself. An example of this is if a user posts misinformation on Twitter and the company decides that your Tweet violates their community guidelines, your account can be suspended. Despite your efforts, you cannot force Twitter to give you a platform. Or if you write a comment on your friend’s Facebook post, they have the right to delete it. The best way to think about this is to compare it to public and private schools. Public schools are an entity of the government. The Supreme Court states that “Public school students do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.” Students have a limited right to wear expressive clothing and hand out petitions as long as they don’t disrupt the functioning of the school. Private schools, on the other hand, do not give students those same rights. This is because a private school isn’t a state entity. Many people believe that this is unfair. But in America, the First Amendment protects your expression from intrusion from the government. Not from private corporations. When you’re talking about private corporations, you always have the option to leave.
“It is Illegal to Display Public Profanity!”
This particular legal take consists of two myths. One, you cannot display profanity, and two, you cannot desecrate the flag. In a 1971 Case that involves the draft, the Supreme Court established that the government cannot criminalize the display of profane words in public places. In the case Cohen v. California, Paul Cohen wore a jacket with the words, “Fuck the draft,” into an L.A. courthouse. Authorities arrested Cohen and charged him with Disturbing the Peace, and Cohen was then sentenced to 30 days in jail. An appeals court affirmed the conviction because it was foreseeable that wearing the jacket could cause a violent reaction. As you can see, in every era, the U.S. government was sensitive to people’s desire to avoid the draft. California argued that public profanity invaded the interests of unwilling viewers. Especially women and children. Justice Harlan observed however that people who were offended by the jacket “Could effectively avoid further bombardment of their sensibilities by averting their eyes. One man’s vulgarity is another’s lyric.” In other words, there’s no legal reason you cannot say “Fuck Joe Biden.”
“You Can’t Desecrate The Flag!”
Additionally, you could desecrate the flag. Flag desecration includes everything from burning the flag to even using it as a tablecloth. Congress has tried to ban the desecration of the American flag for decades, but the Supreme Court has repeatedly ruled that you have a First Amendment right to desecrate the flag. Though in the early 20th century, the Supreme Court did uphold a number of flag desecration statutes. But by the 1960s, the court reversed course. For example, when civil rights leader James Meredith was shot in Mississippi in 1966, Sidney Street took his own flag into the street of New York City and lit it on fire. Street, a black veteran of World War II stated that “If they can do this to James Meredith, we don’t need a flag.” The city fined Street $100. Street filed for a lawsuit which eventually reached the Supreme Court. The Supreme Court reversed Street’s conviction and held that Street could not be punished for burning the flag. Then in 1974, the court reversed the conviction of a college student who put a peace sign on the flag. The state prosecuted the student under a law that made it illegal to improperly use the flag. In this case, the Supreme Court ruled that this was symbolic speech that was protected by the First Amendment. When the court reversed the flag-burning conviction in 1989, the Senate and former President George H. W. Bush were outraged. Congress then enacted the Flag Protection Act. Protesters immediately responded by burning flags and were convicted under federal law. But the Supreme Court struck the law down in the United States v. Eichman case. Holding that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit expression of an idea simply because society finds that idea offensive or disagreeable.”
Though you may run into problems shouting “fire” in a theater, or by burning a flag. But we’re entitled to have our own opinions.
