From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Shouting "Movie!" at a Fire Station (Schenck v US)
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Distribution: usa
Date: Wed, 6 Jan 1993 19:55:06 GMT

In article <1993Jan6.053934.21832@midway.uchicago.edu> thf2@midway.uchicago.edu writes:

>The aphorism about shouting fire falsely in a crowded theater originated
>with Justice Holmes in the case of Schenck v United States during the WWI
>era.

I think modern First Amendment jurisprudence would classify Holmes's
hypothetical as an example of speech-that-is-essentially-action. The
damage created by shouting "fire" in this instance is not that the
subsequent discourse is disturbing, or even that it may lead to harm
sometime in the future. It's that the act directly causes imminent harm.

>I had always been dimly aware that freedom of expression hasn't always
>meant what it means now, but a case this recent coming to a seemingly
>jarring result still surprised me.

For a good historical overview, see Anthony Lewis's MAKE NO LAW.
It should be noted, though, that Holmes changed his mind.

>Holmes doesn't even try to justify the anti-obstruction statute in the
>Congressional power to provide for the defense or raise armies -- he
>just notes that the First Amendment clearly doesn't outlaw all abridgements
>of speech (with the implication that "(freedom of speech)" is something
>different than "(freedom) of (speech)"), formulates the clear and present
>danger test as a dividing line, and then applies the clear and present
>danger test to decide the Schenck is on the wrong side of the line.

The problem with the "clear and present danger" test is that extended up
through the Dennis case in the '50s and beyond. It's always easy to
characterize speech as posing a clear and present danger of *something*.
Ergo, it's a standard under which it's trivial to articulate a rationale
for censorship of disturbing and unpopular speech. (And since no one
tries to censor innocuous, popular speech, "clear and present danger"
is perfect for justifying any government censorship at all.)

>Now, even today's Court would rule 9-0 in the other direction.  I'm
>curious where exactly it was that Holmes went wrong--or, if indeed, he
>*did* go wrong.

He went wrong in failing to distinguish between speech that directly
causes harm and speech that merely gives people "bad" ideas.

>What if, rather than leafletting soldiers, Schenck
>had been orating before a violent mob of anti-war protesters who proceeded
>to sack the center?

Brandenburg v. Ohio, Ted. It's incitement to imminent lawless action that
is likely to cause such action. The Brandenburg test replaces "clear and
present danger" because it's far more precise.

>At what point can Congress prevent the obstruction
>of the draft?  Sure, it can prosecute actual evaders, rather than those
>who encourage evading the draft, but then again, there doesn't seem to
>be much controversy about prosecuting for soliciting someone else to
>commit a crime.

See U.S. v. Benjamin Spock. This very issue was dealt with at trial and on
appeal.

>Judge Learned Hand had proposed
>a test whereby only actual incitements could be punished, and any
>speech not containing explicit incitements was protected, context be
>damned--this test had been rejected as unenforceable, for any clever
>speaker worth her salt could achieve the same results without reciting
>the magic words to qualify under Hand's objective test.

And yet, Ted, this is the law of the land after Brandenburg v. Ohio.
Amazingly, society has not yet fallen, nor have solicitation prosecutions
disappeared.

For a general discussion, see Nimmer on Freedom of Speech, by Melville
Nimmer.


--Mike




-- 
Mike Godwin,    |"I'm waiting for the one-man revolution
mnemonic@eff.org| The only one that's coming."
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EFF, Cambridge  |                   --Robert Frost 
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