Britain is not a ‘crowded theatre’

UK home secretary Jacqui Smith’s decision to ban the Dutch MP Geert Wilders from entering the UK, on the basis of his anti-Islamic remarks, met with the support of her New Labour colleague, foreign secretary David Miliband: ‘We have a profound commitment to freedom of speech’, he declared without irony, ‘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, according to the laws of the land.’ (1)

For Miliband, it seems, that single invocation of theatre-stalking pranksters is enough to do away with the principle of absolute free speech. He is not alone in citing this cliché. The example of shouting fire in a crowded theatre is one of the most frequently, and tediously, recited refutations of free speech. But there are several problems with it, not least its wilful ahistoricism.

In the summer of 1917, with the US having just entered the First World War, the secretary of the Socialist Party, Charles Schenck, responded to the Conscription Act by mailing 15,000 leaflets arguing against conscription to those eligible for the draft. He told them them that ‘if you do not assert and support your rights, 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’. Predictably, the state did not look kindly on Schenck’s actions and he was charged and convicted under the 1917 Espionage Act. But Schenck did not go quietly. Instead, he countered that he was merely asserting his First Amendment right to speak freely on a public issue. And in 1919, the appeal went before the US Supreme Court.

The subsequent decision of Justice Oliver Wendell Holmes to uphold Schenck’s conviction was significant not just for Schenck himself, but for the First Amendment and free speech. ‘We admit’, pronounced Holmes, ‘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.’ (2)

There we have it. In ‘ordinary times’ – that is, when a nation is not at war – Schenck would have well been within his First Amendment rights to speak freely on a public issue. But these were not ‘ordinary times’. These were times of war. And as such, in Holmes’ view, to speak freely on a public issue in the crucible of international conflict was analogous to shouting fire, falsely, in a theatre. It wasn’t so much the act of shouting fire that was problematic, but its context, the time and place in which it was done – in the ‘theatre’ of war, if you like.

Holmes’ judgement was to the detriment of the people of America, effectively legitimising the arbitrary exercise of state power in exceptional times. In wartime, he ruled that it was the prerogative of the state to suspend the rule of law, and with it the principle of an individual’s liberty.

The contemporary recourse to Holmes’ famous judgement strips it of the exceptional context in which it was made. Instead, as Miliband’s defence of the Home Office’s decision to ban Wilders reveals, it serves to justify the curtailing of liberty per se. Whether in the theatre of war or not, one is always forbidden to ‘shout fire’.

Emptied of its historical content, Holmes’ ‘falsely shouting fire in a theatre’ analogy changes meaning. It becomes an elite metaphor for the public sphere in general. This is expressed in the popular corruption of the original words. Fire is no longer shouted ‘falsely’ and the theatre becomes ‘crowded’. Thus altered to ‘shouting fire in a crowded theatre’, it comes to signify an incendiary speech act before a crowd prone to respond unthinkingly, irrationally. Hearing Wilders’ fiery rhetoric, the passions of people will simply ignite, believes Miliband and the Home Office. Monkey hear, monkey do.

What is left of the original quote serves the contemporary elite well. To shout ‘fire’ in a public place will prompt people to leave that space. It is not a form of speech that one contemplates before deciding whether or not to respond to it. Conscious reflection plays little or no role at all. That’s because it is an instruction, not an opinion. As such, it is the equivalent of being told to turn left by a driving instructor – you don’t reason with the driving instructor, you take it in good faith and respond accordingly. That is why Holmes emphasised the falsity of the shout, not just the shout itself, as the wrongdoing.

To equate free speech, no matter how unpalatable the content, with an instructional discourse reduces the listeners to blind followers, a crowd quickly inclined to act upon whatever the interlocutor says. In Miliband’s view, we are all potentially unreasonable when we hear offensive things, behaving like panicked, rather than reasoned, individuals. Miliband, and New Labour more broadly, are passionately opposed to ‘inciting hatred’ because, in their view, such incitement will necessarily and predictably lead to a hateful deed. Why? Because the public are automatons, reacting to words as if they were instructions, similar to being told to leave a place engulfed by flames.

This elision between speech and deed, resting upon the idea that we all suspend reason when hearing an instruction or an order, now even permits the use of John Stuart Mill’s On Liberty in the argument against free speech. Mill wrote: ‘Wherever, in short, there is a definite damage, or a definite risk of damage, either to an individual or to the public, the case is taken out of the province of liberty, and placed in that of morality or law.’ Now in Mill’s own terms, free speech, no matter how offensive it was to the customs and mores of the day, should always be permitted; ‘offence is given whenever the attack is telling and powerful’, he said. It was only in exceptional circumstances, such as direct or criminal incitement, that speech could become a legal matter. Yet, by creating a direct link between certain offensive speech acts and ‘a definite risk of damage’, as Miliband does, Mill is now frequently turned against the very principle that he defended. Mill said: ‘Over himself, over his own body and mind, the individual is sovereign.’ The British government should bear these words in mind.

Tim Black is senior writer at spiked.

(1) Dutch MP refused entry to Britain, BBC News, 12 February 2009

(2) See Schenck v United States, Law Library – American Law and Legal Information