Not many exceptions to free-speech guarantee
“You can’t yell fire in a crowded theater.”
That paraphrase of a paragraph in a 1919 U.S. Supreme Court written by Justice Oliver Wendell Holmes Jr. is often cited as justification for limiting free speech. Critics of the Occupy movement often point to it as justification for government shutting down protests in public parks.
Here’s what Holmes actually wrote:
“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.”
The decision says the First Amendment doesn’t protect false speech that is likely to cause immediate harm to others. It doesn’t say, “The government has plenty of ways to shut you up.”
In America, we have extraordinary latitude in saying what we believe without fear of repression, making the U.S. a model for other nations.
That’s why I’m always surprised when members of the news media suggest otherwise.
One recent example is a column by Chuck Goudie, a reporter at ABC-7 News in Chicago who writes in the Daily Herald of suburban Chicago. Here, in a column about the Occupy protests, is his take on freedom of speech:
“Perhaps more than any other part of the Constitution, the First Amendment right of “free speech” gets cited by Americans.
“Wrongly so.
“From an eighth-grader suspended for recording a song about why his teacher should be dead to the gay community members whose parade has been rerouted, the chorus sounds the same: ‘My right to free speech is being violated.’
“The problem with that is: The Constitution doesn’t guarantee you ‘free speech.’
“Despite what many seem to believe, the ‘freedom of speech’ guarantee in the Constitution doesn’t give you the right to say anything you want, anywhere you want.
“The First Amendment makes it unconstitutional for government to suppress speech (and ‘expression’ as it has come to include). That’s it.
“There are numerous exceptions to that, well beyond just the popular citation of the ‘yelling fire in a crowded theater’ kind of speech that is prohibited. Under the Constitution, the courts allow for many types of dangerous speech to be regulated or banned by law.
“Child pornography, defamation and inciting crimes are just a few examples of speech that has been determined to be illegal under the U.S. Constitution.”
I’m sure Goudie is trying to illuminate the issues, but articles like this leave readers with the sense that the free-speech guarantee is porous and full of exceptions. Yes, the First Amendment applies only to government action, but that’s where censorship threats typically come from. Neighbors and private citizens can’t limit our speech, and bosses can do it in the workplace only because we have a contractual relationship with our employers. As Thomas Paine would have noted, we are born free, and the scope of our liberty is enormous.
Today in America, more than 312 million people will say exactly what they want to say about politics, policies and the world around them. Not a single person will be jailed for the words he or she utters.
Today that same 312 million will pray to the God of their choice (or to none at all), and suffer no consequences.
Today several thousand newspapers and millions of websites and bloggers based in the U.S. will write about what is going on in their communities and in some cases, how they feel about it. Nobody will end the day in jail because of what he’s written.
The power and scope of the First Amendment is extraordinary and we do it a disservice when we suggest that the extraordinarily rare exceptions are the norm.
From Goudie’s column: “Child pornography, defamation and inciting crimes are just a few examples of speech that has been determined to be illegal under the U.S. Constitution.”
Just a few examples? There’s no massive laundry list of exceptions to the First Amendment. The examples cited by Goudie largely deal with criminal activity, not pure speech.
Of course, you can’t yell “Fire” in a crowded theater. You also can’t step to the front of the theater in the middle of a showing of the latest installment of “Twilight” and yell “Long Live the First Amendment” over and over again. In either case, you’d be taken into custody because of your disruptive or threatening action.
Kiddie porn can be suppressed because it hurts children. Speech made in planning a criminal act is punishable as a conspiracy.
And although you can sue someone for defamation, America’s news media enjoy substantial protection under the First Amendment. Essentially you can prevail in a libel suit only if the statement is false and intended to harm (see “Theater, Yelling Fire In”).
Protesters in the Occupy movement are being arrested for trespassing and related acts, but not for their message.
It’s an important distinction. If we accept as conventional wisdom that free-speech rights are often limited, then free expression doesn’t seem so sacrosanct. Though conduct related to speech can be punished, ideas are largely inviolate. That foundation of freedom has served this nation well.
Tags: Occupy, unprotected speech
4 Responses to “Not many exceptions to free-speech guarantee”
The First Amendment Center is an educational organization and cannot provide legal advice.
Ken Paulson is president and chief executive officer of the First Amendment Center at Vanderbilt University and in Washington, D.C. Previously, Paulson served as the editor and senior vice president/news of USA Today.
Gene Policinski, senior vice president and executive director of the First Amendment Center and president and chief operating officer of the Diversity Institute, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is an expert in First Amendment issues and a regular contributor to the First Amendment Center's website. Hudson teaches law and was a scholar at the First Amendment Center.
Tiffany Villager is a contributor to the First Amendment Center's website and was the director of First Amendment studies at the First Amendment Center.
There is another part of the First Amendment that gets lost in all of this, Freedom of Assembly and the Right to Petition our Government. Those involved in this movement have had police in riot gear armed with pepper spray and batons to deny these occupiers who are basically unarmed and acting lawful to Assemble in Public areas i.e. parks with unnecesary force. This is an important part of their movement, to feel threatened to do so violates the basic tenants of the First Amendment. Agreed some have infiltrated this movement to provoke or incite people to act in a criminal matter i.e. attacking police through various means. That still does not take away the right of these individuals to assemble in public places, so long as they respect the community at-large.
If the theater is on fire, I sure as hell hope somebody yells it. That’s called a warning bell.
And yes, the danger apprehended, as you clearly know, must be “present,” or “instant to the moment.”
Otherwise, corrective speech or ideas are the better solution.
I came upon this article because I was looking for the Holmes quote. I was wondering if there are liabilities when someone doesn’t yell fire in a crowded theater when there is a fire, and the person knew it. I thought about this because of a NYT column on the dangers teachers face in dealing with students who may be or have been violent in the past. When counselors or deans know about a student’s past and don’t tell the teacher about it, they would say they are protecting the student’s right to privacy. But, what about the teacher’s and the other students’ rights to be safe and protected? We are only told if a student needs more time to take a test or something like that. We’re never told about criminal records or past violent acts. When does the public good come into play?
Your right to free speech ends where the other person’s begins. There are many examples of things you can say that can get you in trouble by family, friends, neighbors, your work, your doctor, your church, etc. I agree with this article, but I also think that people don’t think enough before they speak. If you say rude and inappropriate things, you should expect to be reprimanded. If you say things that cause others to feel harmed, especially vulnerable populations, you should expect to be pay the consequence. Even if your views are merely controversial, you should expect a rebuttal. That’s what free speech really means. We all have the same freedom, but people don’t seem to understand that. They think it’s only for them.