Free speech: spitting on the fire in the crowded theatre
Writing in the Guardian, Sam Segman tells us that free speech is not free unless it has limits. If you want to stop reading, I can’t blame you. Free speech is so simple a thing it needs no caveats. You get it. You can go. For the rest of you still here, this is Segman:
Free speech has limits. You aren’t allowed to shout “fire” in a crowded theatre because someone’s probably going to get hurt.
You are allowed, or at least you should be. (Factoid: five minutes into Riverdance, it’s compulsory and pardonable to trigger a dash for the exit. See Sorene v In-laws 1998.) How others react to your words is where laws and consequences arise. The word itself should not be unsayable.
But Segman is just echoing a million others who have used the same example of that ‘FIRE! in the theatre to support free speech’s limits. David Miliband banned Dutch politician Geert Wilders from entering the UK in 2009. Miliband told us why: ‘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.’
Free speech is only free and worth championing when the speaker is someone with whom you agree, says Miliband. Our default position should be to err on the side of censorship. How very totalitarian.
As Gabe Rottman writes, the crowded theatre line is “worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech.”
Tim Black told us how the phrase became so commonplace. Taking on the role of Oliver Wendell Holmes, he writes of the man who 1919, in Schenck v United States, opined: ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’
Holmes was appealing a US Supreme Court ruling that convicted an anti-conscription activist under the wartime Espionage Act. (“The Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I.)
In another case, Holmes offered: “The ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” He wanted more speech not less.
But it’s his line about the hot theatre that’s endured. The fuller quote runs thus:
‘[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.’
Black rolls back the eyes and channels Holmes:
“I never said that shouting fire was the problem, or better still, falsely shouting fire. No, what made ‘falsely shouting fire’ a free-speech act too far was the context, the time and place: namely, ‘the theatre’. Or, if you need me to spell it out, ‘the theatre of war’.”
The quote is about limits in extraordinary times. And so to Segman, who adds:
Your right to say what you like is trumped by your responsibility to stop me being trampled to death by a stampede of panicked theatre-goers. Death threats; rape threats; bomb threats; online abuse that drives someone to suicide – these are all things that free speech doesn’t cover – and which aren’t appropriate to defend in its name.
No. They are all examples of free speech. It is either free or it is not. They are things that we must be free to say even if they earn the punishment of other laws.
“Hate speech is not compatible with reasoned debate,” says Segman. But it is. What isn’t, is censorship.