Three Generations of a Hackneyed Apologia for Censorship Are Enough

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58 Responses

  1. Lizard says:

    Would I be considered overly cynical if I opined that the bulk of the people writing this drivel do not actually give a damn how many muslims are offended, but have as their intent setting precedents by which they can call for bans on speech they, personally, find offensive or which expresses ideas they think should not be allowed to be expressed? Once the "sensitivity" argument for censorship is accepted, anyone who claims to have had their feelings hurt can march forward and demand someone else be silenced, and since irrational and biased human beings (that is, ALL human beings, myself included) do not always apply laws rationally and without bias, it is obvious that there will rapidly involve classes of people whom it is legal to insult, and classes of people whom it is criminal to insult, and political movements will begin to focus on shifting groups from one class to the other, as there's a pretty obvious benefit if one side gets to point out the idiocies of the other without being at risk of the same being done to them.

  2. Windypundit says:

    What a fascinating lesson. I have usually encountered the "shouting fire" quote not from advocates of censorship but from its opponents, explaining how some bit of proposed censorship falls short of what appears to be a fairly high standard: The "shouting fire" standard seems to require that the to-be-censored speech be (1) false, (2) said under circumstances in which there is no opportunity for reasoned reflection or debate, and (3) the cause of actual harm by those who hear it. I guess that's not what Holmes had in mind with that example, though, is it? And to my untrained mind, it looks like Brandenburg narrows that considerably.

  3. UTLaw says:

    Excellent post. Bookmarked to read more thoroughly this evening.

    RE your comment that anyone who can reconcile the later opinions being a better lawyer–Holmes' later reversal of his sterilization opinion stood out to me as one of the few absolute reversals in Supreme Court history in my Con Law class. Most of the time, changes happened this way–a new case that purports not to change the old decision, but to be differentiated from it in some weak way.

    As we would read opinions and commentary and listen to lectures about how the Court disliked reversing itself because it took away from its prestige, or made people question its authority, or any other hogwash answer the writer or speaker du jour came up with, I kept having a phrase bubble up in my mind. "The law of the Medes and the Persians which cannot be changed."

    One wishes that our justices would have noted this phrase and the trouble the principle caused when they were in Sunday School and learned to be big enough men to admit when they or their predecessors had been wrong rather than claiming godlike infallability. Precedent might not remain as stable for as long (especially in our current climate), but we would have more clarity and fewer of these sets of opinions that cannot be honestly reconciled.

  4. Grifter says:

    Thanks for the history lesson, Ken. It's nice to know the backstory of these things.

    I always thought the "shouting fire" argument was weak, just because "shouting fire" is a sort of fraud…I've used it myself when acknowledging the limits of individual speech with that understanding, which wasn't where Holmes was going when he made his point.

    The "imminent lawless action" in Brandenburg has always seemed clear only to those who understand how the court speaks better than me…by that standard, wouldn't the crappy film fail the Brandenburg test, considering the Danish cartoons set the knowledge that there is a large movement of violent, easily-offended Muslim extremists who would initiate lawless action in response to the movie?

  5. Roscoe says:

    Ha. Got the Buck v. Bell joke. I wonder why nobody ever uses that quote as evidence of the great justice's wisdom.

  6. Cassidy says:

    Wow! Thank's for posting this one, I shudder to think how many times I unwittingly looked like a fool using the fire in a crowded theater quote. Fortunately I was always using it to try and describe the idea that only speech that can cause immidiate phyisical harm should be prohibitable. At least now I have something else to yell about about in a drunken political rage at parties.

    Frankly I am surprised that Holmes did an about face on this. It doesn't really sound like the facts were particularly different. Perhaps just because they were no longer socialist protesters? It seems to me all of these restrictive laws, from little thingsa like "sit-lie" laws that try to target homeless people in San Francisco to the far more ominously vague "support for terrorism" laws always can garner support because people figure "Oh, I am not one of THOSE kind of people." And then they are shocked, SHOCKED that good people that they approve of get caught up in the aftermath. How many of these people would be foaming at the mouth to censor a movie that caused riots if it was just say, a film advocating Catholicism and was targeted towards a middle east audience.

  7. James Pollock says:

    Wouldn't the prohibition against falsely shouting "Fire!" in a crowded theater be an example of a permitted time-place-manner restriction? (You can, after all, falsely shout "fire!" in an EMPTY theater to your heart's content.)

    The other problem with the "fire-crowded theater" issue is that the experience of fire in a crowded theater is more remote than it was in Holmes' day. I mean, in the last fifty years, there was the Great White concert, and the Deep Purple immortalized "some stupid with a flare gun" at the Grand Hotel, which wasn't even on this continent.
    There were a bunch of people trampled to death at a Who show in Ohio back in the 70's, but that was because of festival seating, which pretty much no longer exists. Government regulation has oppressed business such that we don't have Triangle Shirtwaist stories, either.

  8. ShelbyC says:

    Great Post. And great title.

    @UTLaw, what reversal? AFAIK Buck is still good law, no? Forcible eugenic sterilizations shamefully continued in the US untill the '70's.

  9. Lizard says:

    @Grifter: As my non-lawyer mind understands it, the test of "imminence" has a lot to do with the direct connection of the speaker to the audience, and rests on the idea that the audience has a chance to reflect on the speech and react, rather than being caught up in the passion of the howling mob. If the test were as simple as "You ought to know this is gonna piss someone off", it would be so broad as to ban all controversial speech, and you could create a heckler's veto simply by making it publicly known that "If I hear anyone say this, I'm-a-gonna be so mad I'll punch someone!"

    The audience, of the video, or the cartoons, or a book, is not, at the time the speaker is speaking, a riled-up mob. They are individuals, alone, distanced by time and, erm, distance, from the speaker. They approach the material, unless someone ELSE has already got them mad, in an emotionally neutral state, and thus, choose how to respond.

    The "imminence" test is there to deal with literal lynch mobs and the like, not to target any speech which could be reasonably construed as likely to cause offense or even rage somewhere down the line. It's "don't wave the red flag in front of the raging bull" (yes, I know that's a factually dubious metaphor, thank you) clause, not a "don't manufacture red flags, because you've got to know someone will wave one in front of a bull" clause.

    On a completely unrelated note, I'm subbed to most threads here I post in, but I'm not getting replies. Other mail gets through just fine, and I've checked my spam filter, and nada.

  10. Waldo says:

    I rarely comment just to say "well done!" I'm making an exception for this post.

  11. Man Mountain Molehill says:

    Ironic how modern liberals who are all anti war 'n' stuff like to quote a (speciously worded and basically thugish) decision banning anti war speech.

  12. I often find myself reminding folks that the "fire in a crowded theater" argument is actually quite limited even as put forth by Holmes. He argues that FALSELY shouting fire in a crowded theater is unprotected because of the probability that it will provoke immediate and unreasoning panic which are likely to lead to injury and death. Holmes' analogy would certainly NOT ban shouting "fire" in said theater if there were, in fact, a fire — and an actor shouting "fire" as a part of the performance would also be protected speech. In each case the speech has some sort of value that makes it different from the false cry that Holmes spoke of.

  13. AJ says:

    I would like to offer up a little family history that goes to this. Our family has had many a red in it's history here in the US. During World War I some of my relatives set up a network to help draft dodgers escape into Canada. They honestly considered it an underground railroad that was preventing dissenters from being enslaved.

    Needless to say Woodrow Wilson was a rather unpopular President with some of them. Shouting "I like Holmes" would have been incitement to violence.

  14. Jess says:

    Ken, it may have been long but it was a very informative read. I didn't have all of this pulled together previously and I thank you for doing the work and making it a great read as well.

  15. PG says:

    Although note that the op-ed that began with this quote immediately followed it with the admission, 'Holmes' test — that words are not protected if their nature and circumstances create a "clear and present danger" of harm — has since been tightened. … The current standard for restricting speech — or punishing it after it has in fact caused violence — was laid out in the 1969 case Brandenburg vs. Ohio. Under the narrower guidelines, only speech that has the intent and the likelihood of inciting imminent violence or lawbreaking can be limited.'

    I disagree with Chayes, but it's hardly surprising that someone like her — who used to work for the government, specifically in defense — would prefer to limit speech in order to make the government's job of maintaining order easier. I'm far more disappointed in the quote she got from Anthony Lewis, who has no such stake in repression.

    The neo-Nazis who marched in Skokie may have hoped to stir violence by the provocation of their speech, but that speech was nonetheless protected by the 1st Amendment and civil libertarians at the time defended it as such. I hope that we're not lowering the bar when the people who are to be stirred up are Muslims instead of Jews. Indeed, the popular suspicion, echoed by Chayes, that the video was used as a pretext for protests that then could be cover for a long-planned attack on the Libyan embassy, actually shows how *non*-imminent the violence was.

  16. wgering says:

    This. This is why I come to Popehat.

    Well, this and the taint-humor.

    But mostly this.

  17. Zorro for the Common Good says:

    Here's something I've always wondered about the "fire in a crowded theater" cliche? Would anyone ever actually be prosecuted simply for yelling it? Or would they only be prosecuted if it led directly to a violent stampede? As others have pointed out, you can yell it if it's true, or if you're in an empty theater. Similarly, if a crazy person yelled it and everyone ignored it because they all knew he was crazy, I have a hard time imagining that would lead to charges being filed.

    The parallel here is incitement. My (totally non-lawyer) understanding has always been that you can only be prosecuted for incitement to violence if your incitement leads to actual violence. Or am I wrong here?

  18. Rob Hyndman says:

    Superb piece. Just superb.

  19. G Thompson says:

    Thank you Ken, quite illuminating for a non American to understand where that quote and its context actually came from. Strangely I and a lot of people outside of the USA equate the phrase as a statement designed to ensure any action/expression you perform that is highly likely to create an imminent harm to your immediate neighbour is wrongful. Basically a form of negligence where you have a reasonable duty, breached that duty and harm actually occurs.

    Though it still has to be reasonably balanced against public interest and freedom of expression. Which means yes you can tell people there is a fire in a theatre but don't do it in such a way that you knowingly allow a panic resulting in imminent harm to people.

    In regards to the Video I cannot see the Fire analogy holding up since there is no neighbour duty, there is no immediate or imminent harm in publishing the film and the possibility of violence leading to harm of others (and even death) is too distant to enforce censorship of this nature. Otherwise we need to second and even third (6 degrees or more even) every single thing we produce anywhere on the premise that someone somewhere sometime might get butthurt enough that there own mental disorder or ideology could cause them to take violent action.

  20. Basil Forthrightly says:

    Speaking of "three generations", I recommend Stephen J. Gould's essay "Carrie Buck's Daughter" (reprinted in The Flamingo's Smile) to anyone interested in Buck v. Bell.

  21. Grifter says:


    I agree that that's the intent, but it seems to me to be written in a way that could be interpreted different. I wish the standard was more explicitly phrased… I agree this video, awful and douchey as it is, should be protected. But using only the words as written it seems to me still that it fails the Brandenburg.

    Though Brandenburg is referencing actual advocacy of lawbreaking, which the movie wasn't… obviously the folks who deal with the law know stuff better'n the likes o' me, particularly where it comes to interpretations of words.

    Which brings me to a thought experiment:
    If there was a mob forming in a black neighborhood, and a white guy got up and said "All you N*****s go home!", which then inflamed the crowd and they rioted, would that fail the Brandenburg test?

    Wouldn't that rather show how very imminent it was? Imminent doesn't mean "spur of the moment", it means "at any moment" or "about to happen"…if there's a bomb on a timer you can say "an explosion is imminent", even though it was planned and placed. In this case, they were likely waiting for any excuse, with premeditation, so at any moment they were going to flip out, and anyone showing that video to them could say to his accomplice "any second now…"

  22. Adrian Ratnapala says:

    …except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

    But by this standard, Bassily's video is not protected if the lawless action can be shown to be a predictable consequence of the film.

    But that standard is not enough. Real incitement involves actually exhorting your audience to violence (or whatever other lawless action). Bassily is not doing anything of the kind. Defining that as incitement just gives censorious mobs an incentive to riot even more.

    And then the actual crowded theatre example is different again…

  23. Grifter says:

    So to be clear, that standard requires both likelihood of lawless action AND am exhortation to do that action specifically?

  24. Major Pribluda says:

    I didn't know whether the situation more closely resembles shouting "Fire!" across town from a crowded but flame-free theater, or across town from a crowded theater engulfed in flames.
    Either way, even if the rarely understood yet oft-cited Holmes example meant what she wants it to mean, it stil wouldn't line up with the current situation.

  25. perlhaqr says:

    It's a very odd day indeed when I (who has run straight off the edge of libertarianism into the deep-end of market anarchism) find myself in substantial agreement on an issue with someone who self-defines as a socialist.

    And thanks very much for the history lesson and context, Ken. That was a vastly informative essay.

  26. princessartemis says:

    @Grifter, the video was released two months ago, but the rioting started on September 11th. That demonstrates the lawlessness is not "imminent"; otherwise, the lawlessness would have occurred imminently following the release of the video two months ago.

    The video cannot have failed such a test in this case because the lawlessness was not imminent. A two month delayed reaction is anything but imminent lawless action.

  27. Pablo says:

    But by this standard, Bassily's video is not protected if the lawless action can be shown to be a predictable consequence of the film.

    If it can be shown that a YouTube video will predictably cause people to murder, we first need to stipulate to the existence of deeply defective people who are predictably irrational and violent. Then we need to restrain or eliminate because they're a much bigger threat to society than YouTube.

  28. Grifter says:


    Good point. Didn't realize!

  29. UTLaw says:

    @ Shelby C.

    I was thinking of the Supreme Court (I thought) overturning Buck v. Bell in Skinner v.Oklahoma and was going on my faulty memory from law school. That case was treated as overturning Buck v. Bell–shows the quality of the text.

    After you comment I went back and looked at the cases, and hope I have corrected my memory. Even that was not an explicit overturning–simply more of the same: creating contradictory precedents.

    Thank you for pointing out my error; apparently I am farther than I thought from Re-Educating properly.

  30. James Pollock says:

    Grifter, the answer to your thought experiment is that you're looking in the wrong place for the answer… the first amendment exception that would apply is the "fighting words" exception. According to Wikipedia, the meaningful case is Chaplinsky v. New Hampshire, which was a 9-0 decision.

  31. Jess says:

    Apparently you can't let you kids play outside without getting arrested either.

  32. Joe Pullen says:

    The late U.S. Supreme Court Justice Potter Stewart wrote: “Censorship reflects a society’s lack of confidence in itself.”

    Seems especially appropriate given recent events.

  33. Sparf says:

    So something this brings up is an argument I heard made by Andrew Napolitano once (of Fox News fame), on a talk radio show that I had the misfortune to be listening to. It was about the framing of restriction of speech.

    In his legal opinion, all speech is protected by the first amendment. Period. Fire in a crowded theatre included. The first amendment doesn't make exceptions. You cannot actually be arrested for the 'crime' of saying anything, no matter what it is. What you CAN be arrested for is the outcome if, say, you are inciting a mob to riot or causing a dangerous situation. The two things in his mind are absolutely separate. To Napolitano, the consequences that result are the sole indicator of whether a crime has occurred.

    For example, in his view, you could yell fire in a crowded theatre all you want with no consequence if nobody believes you and therefore the speech causes no harm. It does not prevent your ejection from the theatre by the management, of course, nor protect you from someone else deciding to commit assault and battery. But those are the consequences you live with by exercising that right.

    It's a very interesting argument, and while Napolitano has never seemed like my sort of person and I tend to not like his politics or his over-the-top alarmism about the downfall of America and I certainly do not believe in strict-constructionism, This particular view is at least interesting to consider, given its ramifications. Thoughts?

  34. Grifter says:

    @James Pollock:

    1, Thank you, I was unaware; I had heard of the doctrine, but had never actually looked up the precedents that established it.

    2, Forgive the cursing, but Jesus tapdancing tittyfucking christ on a pogo-stick that's a terrible ruling (IMHDO). The idea that calling someone a name can be made illegal. Just…wow. Definitely puts our earlier debate in a different light (not that I agree with you, but rather now I see the direction from whence you came).

    "It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

  35. Scott C says:

    I'm always reminded of this speech by Christopher Hitchens when people bring up the fire in a theatre argument.

  36. James Pollock says:

    Grifter, I don't think that recognizing the reality that human beings are not always rational is a wrong decision. It would be nice to live in a world where people were always rational and therefore always shrugged off intentional provocation, but we don't. Fortunately, this is a doctrine rarely invoked because the behavior prevented is largely self-correcting in the real world. For example, the white-supremacist crowd is quite vocal when they are the mob, and when they can spew anonymously; they tend to stay real quiet when they are alone in minority neighborshoods.
    I can only assume planet Vulcan has no need of such a doctrine.

  37. Grifter says:

    @James Pollock:

    At the risk of descending into our previous debate,

    "En route to the station, the officer, as well as members of the crowd, insulted Chaplinsky and his religion. Chaplinsky responded by calling the town marshal, who had returned to assist the officer, a "damn fascist and a racketeer" and was arrested for the use of offensive language in public."

    The fact that that was upheld as legitimate seems ridiculous to me.

  38. Gavin says:

    @James Pollock:

    For example, the white-supremacist crowd is quite vocal when they are the mob, and when they can spew anonymously; they tend to stay real quiet when they are alone in minority neighborshoods.

    Yes, anonymity, safety in numbers, or simply holding the best cards can bring out the worst in humanity.

  39. James Pollock says:

    Grifter, keep in mind that once a case reaches the appeals court level, the case is no longer about the facts, but about points of law. That case answers the question "does the first amendment preclude states from banning "fighting words?" (no, it does not… technically, the question is about the 14th amendment but that matters only to people who focus on unimportant details). The case does not attempt to answer the question "should this guy be in jail?" (It also doesn't attempt to answer the question "shouldn't law enforcement officers be trained to a higher level so that "fighting words" are far less likely to affect them?")

  40. Grifter says:

    @James Pollock:

    That's not entirely true:

    "Chaplinsky was fined, but he appealed, claiming the law was "vague" and infringed upon his First Amendment and Fourteenth Amendment rights to free speech."

    If the argument is whether the law was vague enough to be misapplied (if Chaplinsky's speech should have been protected), I would think the circumstances very much would factor into that decision.

  41. Grifter says:

    The law, btw, was:

    "Under New Hampshire's Offensive Conduct law (chap. 378, para. 2 of the NH. Public Laws) it is illegal for anyone to address "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place … or to call him by an offensive or derisive name."

  42. TJIC says:

    > We admit 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 the character of every act depends upon the circumstances in which it is done.

    Sounds like something Radley Balko once said to me.

  43. James Pollock says:

    Grifter, as you will no doubt be unsurprised to learn, lawyers mean something different when they use the word vague. A law that is found to be void for vagueness doesn't have anything to do with whether or not it's hard to tell if the actions the present defendendant fall under the law. (This is what we pay prosecutors and especially judges to figure out for us.)
    Rather, a law is void for vagueness if an ordinary person cannot tell in advance if their actions will or will not fall under the law. So, Chaplinsky's lawyer is making two different attacks on the law, one of vagueness and the other a first(fourteenth) amendment argument. He lost both, but the case is significant because of the first(fourteenth) amendment argument… I don't think the law is vague (it doesn't spell out specifically which epithets you can't yell at which specific groups or types of people, but the idea of yelling epithets stands on its own.)

    I think today you'd attack the law as overbroad, in that it catches non-protected speech AND protected speech, and might have better luck.

  44. Fluffy says:

    The "shouting fire" standard seems to require that the to-be-censored speech be (1) false,

    I should think that merely showing that the statement was false would be insufficient; you'd also have to show that the speaker knew it to be false.

    That's a pretty steep burden. To meet it, you'd have to introduce evidence that went beyond the mere act of speaking at that moment, to show evidence of bad intent. And once you do that, you aren't really punishing the speaker for speech any more. If I dig a put and fill it with spikes and call you towards me to get you to run into the pit and kill yourself, that's murder, and not "speech". I'm not being punished for my words, but for my overall plot to murder, of which the speech was merely one element.

    It's really a terrible example for any number of reasons.

    In addition, the problem with the "clear and present danger" standard is that it requires agreement as to what constitutes a danger, and by definition we never have that. In the case of World War I, the US participation in the war was the result of an action of the Congress – and what Congress can make, it can unmake, at any moment. That means that even speech that would demonstrably lead to losing the war couldn't constitute a "clear and present danger", because the Congress had declared war, and could also abandon the war at any moment it chose; if Congress can abandon the war whenever it chooses, it can't possibly be a "clear and present danger" to the country for me to advise the Congress to abandon the war. Nothing is really a "clear and present danger" because whatever the Congress can be induced to embrace is by definition the "right" outcome, and that means what is and what is not a danger is entirely dependent on the vagaries of the political process.

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