‘There is no freedom to shout fire in a crowded theatre.’ That quote, no, that mis-quote, has been the bane of my death. Any half-baked liberal unable to stomach the prospect of someone espousing a view he doesn’t like, or two-nickel senator with a censor’s axe to grind, uses it as proof positive that there ought to be limits to freedom of speech. Just listen to this from some Brit politician called David Miliband when he banned Geert Wilders, a Dutch politician and anti-Islam obsessive, from entering the UK in 2009: ‘We have a profound commitment to freedom of speech, but there is no freedom to cry “fire” in a crowded theatre and there is no freedom to stir up hate, religious and racial hatred.’
‘No freedom to cry “fire” in a crowded theatre’, and therefore no freedom to be really critical of a religion, no freedom to hold racist views. That’s the logic right there. And it’s my fault because way back in 1919, in Schenck v United States, I said: ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’ But there was a context, there was a reason for me saying what I said, and, to be honest, there was a great deal of regret, too. So what happened?
In the summer of 1917, the US, having just entered the First World War, passed the Conscription Act. Not everyone was overjoyed, as you can well imagine. There were some, such as Charles Schenck, the secretary of the Socialist Party, who were utterly against being legally compelled to fight in a war they vehemently opposed. So Schenk and his socialist comrades did something about it: they mailed out 15,000 leaflets denouncing conscription to those eligible for the draft. ‘If you do not assert and support your rights’, read the leaflet, ‘you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain’. Hardly inflammatory, if you pardon the crowded-theatre pun. Needless to say, Schenck’s arguments did not go down too well with the US state; he was charged and convicted under the 1917 Espionage Act.
Schenk, however, was a determined fellow, and he countered insisting that in campaigning against the draft he was merely asserting his First Amendment right to speak freely on a public issue, namely conscription. In 1919, the appeal went before the US Supreme Court, and in doing so, I got the chance to pronounce my own verdict on the Schenck case. In short, I, to the benefit, it seems, of every thoughtless violator of free speech, upheld the verdict. This is what I said:
‘[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… 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. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’