Former President Donald J. Trump has been acquitted in his second impeachment trial. This time, Mr. Trump was charged with inciting the mob that assaulted the Capitol building in Washington, D.C. on January 6th. Mr. Trump’s lawyers relied on the U.S. Constitution’s First Amendment, which protects free speech. But Mr. Trump’s critics allege that his action was akin to shouting ‘fire’ in a crowded theater, and that it therefore cannot be protected under free speech considerations.
This is a seriously flawed argument. The phrase “shouting ‘fire’ in a crowded theater” was originally formulated by Justice Oliver Wendell Holmes in the 1919 U.S. Supreme Court case Schenck v. United States. Charles Schenck—a member of the Socialist Party—had distributed pamphlets criticizing conscription. He was charged with sedition, and Justice Holmes upheld the decision by writing that “the most stringent protection of free speech would not protect a man falsely shouting ‘fire’ in a theatre and causing a panic.”
It is unquestionably true that shouting ‘fire’ in a crowded theater ought not to be protected free speech. But the problem with Holmes’ use of the phrase is that it presents a false analogy. All Schenck did was offer arguments against conscription by distributing pamphlets—regardless of whether or not they were reasonable or even well-articulated. That is a far stretch from shouting ‘fire’ in a crowded theater. Never did Schenck encourage potential draftees to burn down barracks or kill drill sergeants. And if, after reading the pamphlet, someone did decide to burn down barracks or kill drill sergeants, Schenck would not be in any reasonable way responsible for such crimes.
A Jewish preacher in the 1st Century famously said, “I have not come to bring peace but a sword.” In his name, millions have been killed by the sword. Was this Jewish preacher responsible for, say, the siege of Jerusalem in 1099 when, according to one—no doubt, exaggerated— chronicle, “men rode in blood up to their knees,” if such massacres were done in his name? The very idea is ludicrous.
Perhaps the modern secular Left does not care much about Jesus, so as far as they are concerned, Jesus did incite violence and is responsible for the Crusades. But in more recent times, these same leftists have quickly exonerated artists whenever they are accused of inciting violence. We are told by the Left over and over again that hip hop lyrics have no responsibility on high crime rates in the African American community. In their view, when N.W.A. rapped in Fuck tha Police, “for a punk motherfucker with a badge and a gun/ to be beating on and thrown in jail/ we can go toe-to-toe in the middle of a cell,” it was not akin to shouting ‘fire’ in a crowded theater.
And indeed, they have a point. Shouting ‘fire’ in a crowded theater is exactly that: inciting imminent lawless action that results in violence. Anything short of that ought to be protected under free speech considerations. Making apocalyptic proclamations (as Jesus did), or expressing resentment against the police (as N.W.A. did), even if rhetorically coated with allusions to violence, is not incitement to violence.
Holmes’ analogy is dangerously inept because it has now become the foundation for the disastrous so-called “cancel culture” that permeates American universities. Anything that deviates from the radical left-wing agenda is now considered akin to shouting ‘fire’ in a theater. If, in a linguistics class, the professor explains that nega is a common pause word in Chinese, that will be perceived as a racial attack and an incitement of violence against black students; in the University of Southern California’s reckoning, that is as bad as shouting ‘fire’ in a crowded theater. Consequently, the professor should be terminated (or at least suspended), as indeed, it was the case.
In Mr. Trump’s impeachment trial, his lawyers argued that the trial was part of a “constitutional cancel culture.” They were correct. Although cancel culture originated in academia, it has now expanded to politics, and free speech is under assault at all levels.
You can read and listen to Mr. Trump’s speeches on January 6th, 2021, and you will never find any words inciting violence. His message was clear: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” Yes, he was wrong to insist that the election was stolen (with no proof whatsoever). But that is simply making claims without evidence—as billions of people do whenever they express religious beliefs. He encouraged his followers to exercise the right to protest admittedly, on the basis of a false belief—but he insisted that such protests ought to be peaceful. That is far from inciting violence.
Public speakers are misunderstood all the time, and often, violent acts come as a result. For example, in Tokyo in 1969, noted cultural critic R.D. Laing lectured about the evils of psychiatry. Soon afterward, students burned down Tokyo’s psychiatric department. Laing’s criticisms of psychiatry were very questionable—to say the least—but nobody would ever argue that his anti-psychiatric tirades were akin to shouting ‘fire’ in a crowded theater. In fact, although Laing’s approach to psychiatry was misinformed, it was in psychiatry’s own interest to let him speak, because, as John Stuart Mill famously said, when a false opinion is suppressed, humanity is deprived from“the clearer perception and livelier impression of truth, produced by its collision with error.”
Trump’s acquittal is good news, to the extent that it represents pushback against the advances of cancel culture. Americans are regaining the sense to understand that shouting ‘fire’ in a crowded theater is a dangerously inept analogy in most of the cases in which it is applied. As the renowned professor Steven Pinker (himself a recent victim of cancel culture) has explained, “despots in so-called ‘democratic republics’ routinely jail their opponents on charges of treason, libel, and inciting lawlessness… Even Oliver Wendell Holmes’s famous exception to free speech – falsely shouting ‘Fire!’ in a crowded theater – is easily abused, not least by Holmes himself.” Yet, the disturbing fact is that, despite Trump’s acquittal, only a minority of U.S. Senators voted for that option. This is indicative that, although there may be some pushback against cancel culture, it remains strong, both in politics and academia.
Image: Krists Luhaers, Public Domain
Schenck sets the stage judicially for considering Trump remarks and insurgency of violence according to Oliver Wendell Holmes. The distinction is that via the internet, violence is encouraged worldwide. It is not just free speech to a few. It is pervasively seditious with emotional incitement leading to physical violence.
Incitement repeated worldwide becomes an attack on government by intent, regardless of what is said, and invites conspirators,….just like 1/6/23, carried out as an example.
There was plenty of proof. In the late ’70s when I was a poll worker,
1. the voting machines did not allow any poll worker “custody” of the votes.
2. The voter’s identity was not retained in the voting machine, only the register, so the vote itself was anonymous.
As a poll worker, if a voter demanded to vote but was not in the register, they were given an affidavit ballot and sent to see a judge who would review it and decide if it could be entered as a vote. They changed that process. If the person was not in the register, they were allowed to vote on an affidavit ballot and it was sent directly to the Board of Elections for review, no longer going to a judge. Since I was now the poll site manager, I could no longer challenge my fellow citizens when they could not show voter registration. That would happen at the Board of Elections going forward, away from citizens and judges.
The new computerized systems allow a poll worker “custody” of the ballots and even “chains of custody” of the ballots. You can duplicate ballots and ballots retain the identity of the voter, so that if we are in the middle of a Marxist revolution they will know you by your voting history and can easily sort you to the gulags or the firing squad as they deem fit based on your voting history. Poll watchers were stopped from entering the polling areas they were assigned to “watch.” There is no remedy for this fraud and the election has to be redone. Very few were redone.
Politicians gave orders that were not under their purview, orders that should legally have come from the legislatures but this was not addressed.
The voting systems allowing custody and chains of custody with record of the full ID of the voter and how they voted on the ballot should not exist.
The older systems were designed to secure the election.
The new computerized ones were designed for fraud.
It is important to remember that Justice Oliver Wendell Holmes, a Civil War veteran who had been born in 1841, was describing what “shouting ‘fire’ in a crowded theater” meant *in* 1919 and not today.
Back in 1919, movie film was made out of nitrocellulose — the polyester “safety film” that many of us remember using before converting to digital photography wouldn’t be invented until 1951. Also known as “gun cotton”, an early substitute for gunpowder, nitrocellulose is both explosive and highly flammable. It will spontaneously explode if heated to 300 degrees Fahrenheit — easy enough to do with hot projector bulbs — or if dropped on the floor. Worse, it would continue to burn even when fully submerged underwater.
Movie projectors exploded into flames so frequently that building codes came to require an enclosed projection booth, a requirement which largely still exists today. And all that did was buy time as these were wooden buildings with flammable furnishings.
Fire safety circa 1919 was downright primitive when compared to the standards of today. There were no sprinklers, there were no smoke detectors, there were no loud fire alarms with flashing strobe lights, or emergency lighting. (Electric lighting was replacing gaslights, not that some of the early electrical lighting was any safer.)
Hence the person shouting “fire” would be the only warning that the audience would ever get. The 1903 fire at the Iroquois Theatre in Chicago killed at least 602, and that was in a purportedly “fireproof” building. Fire death tolls continued to be horrific by today’s standards — the 1942 Coconut Grove fire in Boston that killed 492, the Hartford circus tent fire that killed 170 and injured more than 700, and the 1958 fire in a Chicago parochial school that killed 95 come to immediate mind as examples.
It’s the same thing as the significance of the church bell being rung in the midst of the so-called “Boston Massacre” of March 5, 1770 — back then, the church bell also served as the municipal fire alarm. That’s why the situation escalated so quickly once that was done, someone had essentially pulled the fire alarm.
The other thing to remember about Justice Oliver Wendell Holmes and the Schenck decision is that Holmes was a Civil War veteran — fully aware of the 1863 New York City Draft Riots and I believe that colored his perspective of what Schenck was doing.
Incitement to riot is notoriously hard to prove–in the 60’s, speakers at rallies would often end with “Time to go home–there are many ways to go home” which was an invitation to start breaking/burning things. Trump was not being impeached for his constitutional speech as a private citizen but rather this unrelenting campaign to overturn the results of a free and democratic election and refusing to accept a transfer of power. Furthermore, even if one could characterize his speech before the march on the Capitol as pacifistic, his failure to act to restore order while watching the attack on television was clearly impeachable (“faithful execute the laws” is in the Constitution–Pence had to take over the federal response to the attack). You might ask yourself the counterfactual here–what would have happened had the rioters actually succeeded in preventing the counting of votes–would Trump have declared himself El Presidente for life since there had been no legal vote to elect a successor? The attack on the Capitol reminds me of the attack on the Russian parliament in 1993–I remember watching as a tank fired shell into the building. Several weeks later all was “forgotten” and the Duma was back at work, but the precedent for force was set and now we have Putin. Or recall in the antebellum Congress, congressmen/senators often were armed and there was the horrible caning of Charles Sumner. And we know what followed all that.
All of what you say is true, except claiming that Trump was charged with refusing transfer of power, and attempting to overturn election results. Although those motifs were mentioned, the article of impeachment was incitement of insurrection
OK, what about Kamala Harris and her open advocacy of the BLM rioting?
Marc, look into the Hartford Convention — the concept of secession neither started when nor where you think it did….