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Three Generations of a Hackneyed Apologia for Censorship Are Enough

Sep 19, 2012

By Ken.

Law

In her Los Angeles Times opinion piece justifying prosecution of the author of the "Innocence of Muslims" video on YouTube, Sarah Chayes opens exactly the way I've come to expect:

In one of the most famous 1st Amendment cases in U.S. history, Schenck vs. United States, Supreme Court Justice Oliver Wendell Holmes Jr. established that the right to free speech in the United States is not unlimited. "The most stringent protection," he wrote on behalf of a unanimous court, "would not protect a man in falsely shouting fire in a theater and causing a panic."

Holmes' famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes' fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying "well, some speech is protected by the First Amendment" is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don't have to rely on a 90-year-old rhetorical flourish to support your argument.
Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech. This post is not about fisking Sarah Chayes; her column deserves it, but I will leave it to another time. This post is about putting the Holmes quote in context, and explaining why it adds nothing to a First Amendment debate.

Holmes' Full-Throated Approval For Suppression of Wartime Dissent
Holmes' famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority.
The three cases in question arose from socialist criticism of conscription during World War One. The criticism at issue, to modern tastes, was a clearly protected and rather mild expression of opinion. Here's what got Socialist Party of America chair Charles Schenck prosecuted and imprisoned under the Espionage Act:

The document in question [a pamphlet Schenck helped produce], upon its first printed side, recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a conscript is little better than a convict. In impassioned language, it intimated that conscription was despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution when he refused to recognize "your right to assert your opposition to the draft," and went on:
"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."
It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold the rights of the people of this country."

Holmes, writing for a unanimous Supreme Court, affirmed Schenck's conviction on the theory that this expression could be punished in wartime even though it merely urged "peaceful measures such as a petition for the repeal" of conscription, on the theory that the government could suppress speech that might interfere with the draft. This led to Holmes' oft-quoted phrase:

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. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. 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. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.

The two companion cases from 1919 are quite similar. In Debs v. United States, Holmes once again delivered the opinion of a unanimous Supreme Court, affirming a criminal conviction under the Espionage Act. Famed socialist Eugene V. Debs was sentenced to ten years in prison for a speech that Holmes summarized at length (are there any short socialist speeches?) in support of the basis for Debs' conviction. It's a lot of text — skip it if you will — but I quote it to demonstrate that Holmes implied that even the most generic phrases of criticism of the government can be punished if they are part of an effort to "obstruct" conscription:

The main theme of the speech was Socialism, its growth, and a prophecy of its ultimate success. With that we have nothing to do, but if a part or the manifest intent of the [249 U.S. 211, 213] more general utterances was to encourage those present to obstruct the recruiting service and if in passages such encouragement was directly given, the immunity of the general theme may not be enough to protect the speech. The speaker began by saying that he had just returned from a visit to the workhouse in the neighborhood where three of their most loyal comrades were paying the penalty for their devotion to the working class- these being Wagenknecht, Baker and Ruthenberg, who had been convicted of aiding and abetting another in failing to register for the draft. Ruthenberg v. United States, 245 U.S. 480 , 38 Sup. Ct. 168. He said that he had to be prudent and might not be able to say all that he thought, thus intimating to his hearers that they might infer that he meant more, but he did say that those persons were paying the penalty for standing erect and for seeking to pave the way to better conditions for all mankind. Later he added further eulogies and said that he was proud of them. He then expressed opposition to Prussian militarism in a way that naturally might have been thought to be intended to include the mode of proceeding in the United States.
After considerable discourse that it is unnecessary to follow, he took up the case of Kate Richards O'Hare, convicted of obstructing the enlistment service, praised her for her loyalty to Socialism and otherwise, and said that she was convicted on false testimony, under a ruling that would seem incredible to him if he had not had some experience with a Federal Court. We mention this passage simply for its connection with evidence put in at the trial. The defendant spoke of other cases, and then, after dealing with Russia, said that the master class has always declared the war and the subject class has always fought the battles-that the subject class has had nothing to gain and all to lose, including their lives; that the working class, who furnish the corpses, have never yet had a voice in declaring war and never yet had a voice in declaring [249 U.S. 211, 214] peace. 'You have your lives to lose; you certainly ought to have the right to declare war if you consider a war necessary.' The defendant next mentioned Rose Pastor Stokes, convicted of attempting to cause insubordination and refusal of duty in the military forces of the United States and obstructing the recruiting service. He said that she went out to render her service to the cause in this day of crises, and they sent her to the penitentiary for ten years; that she had said no more than the speaker had said that afternoon; that if she was guilty so was he, and that he would not be cowardly enough to plead his innocence; but that her message that opened the eyes of the people must be suppressed, and so after a mock trial before a packed jury and a corporation tool on the bench, she was sent to the penitentiary for ten years.
There followed personal experiences and illustrations of the growth of Socialism, a glorification of minorities, and a prophecy of the success of the international Socialist crusade, with the interjection that 'you need to know that you are fit for something better than slavery and cannon fodder.' The rest of the discourse had only the indirect though not necessarily ineffective bearing on the offences alleged that is to be found in the usual contrasts between capitalists and laboring men, sneers at the advice to cultivate war gardens, attribution to plutocrats of the high price of coal, &c., with the implication running through it all that the working men are not concerned in the war, and a final exhortation, 'Don't worry about the charge of treason to your masters; but be concerned about the treason that involves yourselves.' The defendant addressed the jury himself, and while contending that his speech did not warrant the charges said, 'I have been accused of obstructing the war. I admit it. Gentlemen, I abhor war. I would oppose the war if I stood alone.' The statement was not necessary to warrant the jury in finding that one purpose of the speech, whether incidental [249 U.S. 211, 215] or not does not matter, was to oppose not only war in general but this war, and that the opposition was so expressed that its natural and intended effect would be to obstruct recruiting. If that was intended and if, in all the circumstances, that would be its probable effect, it would not be protected by reason of its being part of a general program and expressions of a general and conscientious belief.

Holmes dismisses Debs' free speech defense with a passing reference to the matter being resolved in Schenck.
Debs continues a crucial and dangerous rhetorical dodge from Schenck — the deliberate obfuscation of what dangers, exactly, the government has the power to prevent. Holmes writes:

Its first recommendation was, 'continuous, active, and public opposition to the war, through demonstrations, mass petitions, and all other means within our power.' Evidence that the defendant accepted this view and this declaration of his duties at the time that he made his speech is evidence that if in that speech he used words tending to obstruct the recruiting service he meant that they should have that effect. The principle is too well established and too manifestly good sense to need citation of the books. We should add that the jury were most carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service , &c., and unless the defendant had the specific intent to do so in his mind.

In neither Schenck nor Debs does Holmes offer more specifics — like "the government has the power to prohibit ends like anti-draft riots or refusals to report for duty." Rather, Holmes uses deliberately vague language susceptible to the interpretation that the government has the power to prohibit speech that might lead people to demonstrate against, vote against, and petition their government to alter conscription. This is a calculated blurring of the line between what the government wants to avoid (a drop in support for the war and the draft) and what it should have the power to prevent (active defiance of the law, on the one hand, versus criticism of the law, on the other).
Frohwerk v. United States is the last of the shameful 1919 trilogy. Frohwerk was convicted under the Espionage Act for conspiring to produce a local newspaper critical of the war and of conscription. Once again Holmes wrote for the court, identifying the language that led to a ten-year sentence for Frohwerk. Once again, the quote is long, but important to establishing the breadth of speech targeted:

The first begins by declaring it a monumental and inexcusable mistake to send our soldiers to France, says that it comes no doubt from the great trusts, and later that it appears to be outright murder without serving anything practical; speaks of the unconquerable spirit and undiminished strength of the German nation, and characterizes its own discourse as words of warning to the American people. Then comes a letter from one of the counsel who argued here, stating that the present force is a part of the regular army raised illegally; a matter discussed at length in his voluminous brief, on the ground that before its decision to the contrary the Solicitor General misled this Court as to the law. Later, on August 3, came discussion of the causes of the war, laying it to the administration and saying 'that a few men and corporations might amass unprecedented fortunes we sold our honor, our very soul' with the usual repetition that we went to war to protect the loans of Wall Street. Later, after more similar discourse, comes 'We say therefore, cease firing.'
Next, on August 10, after deploring 'the draft riots in Oklahoma and elsewhere' in language that might be taken to convey an innuendo of a different sort, it is said that the previous talk about legal remedies is all very well for those who are past the draft age and have no boys to be drafted, and the paper goes on to give a picture, made as moving as the writer was able to make it, of the sufferings of a drafted man, of his then recognizing that his country is not in danger and that he is being sent to a foreign land to fight in a cause that neither he nor any one else knows anything of, and reaching the conviction that this is but a war to protect some rich men's money. [249 U.S. 204, 208] Who then, it is asked, will pronounce a verdict of guilty upon him if he stops reasoning and follows the first impulse of nature: self-preservation; and further, whether, while technically he is wrong in his resistance, he is not more sinned against than sinning; and yet again whether the guilt of those who voted the unnatural sacrifice is not greater than the wrong of those who now seek to escape by illadvised resistance. On August 17 there is quoted and applied to our own situation a remark to the effect that when rulers scheme to use it for their own aggrandizement loyalty serves to perpetuate wrong. On August 31 with more of the usual discourse, it is said that the sooner the public wakes up to the fact that we are led and ruled by England, the better; that our sons, our taxes and our sacrifices are only in the interest of England. On September 28 there is a sneering contrast between Lord Northcliffe and other Englishmen spending many hundreds of thousands of dollars here to drag us into the war and Count Bernstorff spending a few thousand to maintain peace between his own country and us. Later follow some compliments to Germany and a statement that the Central powers are carrying on a defensive war. There is much more to the general effect that we are in the wrong and are giving false and hypocritical reasons for our course, but the foregoing is enough to indicate the kind of matter with which we have to deal.

Next, in stark contrast to what he would say a year later, Holmes' minimized and dismissed the argument that there was insufficient evidence to show these words had any actual tendency to promote lawlessness:

It does not appear that there was any special effort to reach men who were subject to the draft; and if the evidence should show that the defendant was a poor man, turning out copy for Gleeser, his employer, at less than a day laborer's pay, for Gleeser to use or reject as he saw fit, in a newspaper of small circulation, there would be a natural in [249 U.S. 204, 209] clination to test every question of law to be found in the record very thoroughly before upholding the very severe penalty imposed. But we must take the case on the record as it is, and on that record it is impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out. Small compensation would not exonerate the defendant if it were found that he expected the result, even if pay were his chief desire. When we consider that we do not know how strong the Government's evidence may have been we find ourselves unable to say that the articles could not furnish a basis for a conviction upon the first count at least. We pass therefore to the other points that are raised.

After Holmes' opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that "obstructed" conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the "fire in a theater" quote that people so love to brandish to justify censorship.
Sarah Chayes' L.A. Times column demonstrates how Holmes' rhetorical dodges can be employed in support of unprincipled and broad calls for censorship. Holmes blurred the line between what the government should be able to prevent (speakers urging listeners to imminent lawbreaking, like riots) and what it would merely like to prevent (loss of support for the war). Similarly, Chayes and her ilk blur the line between what the government should be able to prevent (speech intended to incite, and likely to incite, people to imminent lawbreaking), what it would like to prevent (violence by mobs, whether actually motivated by insulting videos or whether manipulated by forces using those videos) and what it should not be able to prevent (expressions of opinion which might offend someone and be used as an excuse for violence). Holmes accepted you shouldn't be permitted to make the populace doubt the war efforts in wartime; Chayes and her ilk accept you shouldn't be able to say things that can be used by distant mobs as justifications for rioting.
Holmes' Repentance — Too Little, Too Late
Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. In Abrams v. United States, the Supreme Court upheld the Espionage Act convictions of Russian immigrants. Though the defendants' publications included words that came significantly closer to advocating lawlessness than the Schenck defendants, what is notable is the breadth of power the majority confers upon the government to suppress wartime dissent:

The purpose of this obviously was to persuade the persons to whom it was addressed to turn a deaf ear to patriotic appeals in behalf of the Government of the United States, and to cease to render it assistance in the prosecution of the war.

Holmes, a regretful Dr. Frankenstein struggling against his creation, dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking:

I never have seen any reason to doubt that the questions of law that alone were before this Court in the cases of Schenck, Frohwerk and Debs, 249 U.S. 47, 204, 211, were rightly decided. I do not doubt for a moment that, by the same reasoning that would justify punishing persuasion to murder, the United States constitutionally may punish speech that produces or is intended to produce a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.
But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.

What follows is one of Holmes' most famous quotes defending freedom of expression, one that marks him unjustifiably and undeservedly in public memory as a champion of free speech.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that 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. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Yeah. Now you tell us.
Schafer v. United States is more of the same. It involved German-language newspapers in Philadelphia that opposed the war and mocked American efforts. Quoth the majority, advocating a standard that's little more than "this was bad for morale":

To them its derisive contempt may have been truly descriptive of American feebleness and inability to combat Germany's prowess, and thereby chill and check the ardency of patriotism and make it despair of success, and in hopelessness relax energy both in preparation and action. If it and the other articles, which we shall presently refer to, [251 U.S. 466, 479] had not that purpose, what purpose had they? Were they the mere expression of peevish discontent, aimless, vapid, and innocuous? We cannot so conclude. We must take them at their word, as the jury did, and ascribe to them a more active and sinister purpose. They were the publications of a newspaper, deliberately prepared, systematic, always of the same trend, more specific in some instances, it may be, than in others. Their effect or the persons affected could not be shown, nor was it necessary. The tendency of the articles and their efficacy were enough for offense-their 'intent' and 'attempt,' for those are the words of the law-and to have required more would have made the law useless. It was passed in precaution. The incidence of its violation might not be immediately seen, evil appearing only in disaster, the result of the disloyalty engendered and the spirit of mutiny.
. . . .
The purpose is manifest, however the statements of the article may be estimated, whether as criminal means, violations of law, or the exercise of free speech and of the press, [251 U.S. 466, 481] and its statements were deliberate and willfully false; the purpose being to represent that the war was not demanded by the people but was the result of the machinations of executive power, and thus to arouse resentment to it and what it would demand of ardor and effort. In final comment we may say that the article in effect justified the German aggressions.

This time Holmes joined Justice Brandeis, who began laying the groundwork for what would later become a principled application of the "clear and present danger" test.

The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive treason. 2 To hold that such harmless additions [251 U.S. 466, 494] to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing [251 U.S. 466, 495] of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.

Anyone who can reconcile that with the Schenck cases is a better lawyer than I.
Finally, Pierce v. United States concerned Espionage Act convictions premised on anti-war leaflets which, the majority accepted, obstructed the war and contained actionable false statements about the war. In his opinion — which Holmes joined — Justice Brandeis questioned whether the evidence sufficed to show that the defendants knew that statements in the leaflets were false, questioned whether some of the challenged statements were fact or opinion (including, notably, discussions of the reasons for the war, exactly the sort of discussions found outside of First Amendment protection in the Schenck trilogy), and questioned the proof that the defendant intended to obstruct the war by distributing the leaflets. It's a rigorous examination of the government's theory of the case and justifications for censorship; it's also utterly irreconcilable with what Holmes wrote just months before, in which he broadly stated that intent to obstruct could be inferred from the contents, and in which he ignored distinctions between fact and opinion.
The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard:

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Note that Brandenburg does suggest, explicitly, that some speech is unprotected by the First Amendment. But people seeking a generic pro-censorship quote go to Holmes, not Brandenburg, and well they should — Schenck supports a loose and unprincipled interpretation of what the "fire in a theater" might be. [Edit: as a commenter points out, note that to be fair to Chayes she does mention Brandenburg even though she opens with Schenck.]
The Consequences of Uncritical Deference to the Government
Holmes was not specifically hostile to speech. It's likely that his permissive approach to government censorship in the Schenck arises from his deference to the other branches of government. Deference from the judiciary is a good thing when it comes to interference in general policy. It's a dangerous thing when it comes to interpretation of the state's power over the individual. Perhaps no Holmes case demonstrates this so well — or is so widely and justifiably condemned — as Buck v. Bell, in which Holmes wrote the opinion upholding forcible sterilization under a governmental eugenics policy. That led him to another famous rhetorical flourish, to which I allude in my title:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

Holmes' shocking callousness in this quote is different than his language in Schenck, but his casual and colloquial approach to endorsing government power over individuals is the same. As in Schenck, he offers a catchy slogan where a meticulous and principled standard is called for.
Bear all of that in mind the next time someone name-drops Holmes and cites Schenck as part of a broad endorsement of censorship. The problem isn't that they're incorrectly citing Holmes. The problem is that they are citing him exactly right, for the vague, censorious, and fortunately long-departed "standard" he articulated. Justice Holmes, three generations of hearing your sound-bite are enough.