Ask anyone to give an example of speech unprotected by the First Amendment, odds are one of the first answers you’ll get is “shouting ‘fire’ in a crowded theater.” That’s the accepted standard for limiting speech.
But what if there is a fire in the theater? Can you shout “fire” then? Well, of course. Goes to show how squishy some accepted standards are, how little consideration we give to the legal and practical boundaries around the First Amendment, how little thought we give to the five precious freedoms those 45 words bestow on us.
The standard was set in 1919 when the U.S. Supreme Court unanimously upheld a conviction under the Espionage Act. In that ruling, Justice Oliver Wendell Holmes wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Note the nuance that has been largely lost in translation over the course of the last century. First Amendment protection does not extend to someone falsely shouting fire in a theater and causing a panic.
Today’s propagandists use vast media networks to falsely shout all kinds of things to crowds numbering in the millions, with the obvious intent of instilling fear and causing panic. They claim First Amendment protection as they do it, and legitimate journalists and other self-styled free speech advocates have their backs all the while. No one is drawing the line that Justice Holmes once drew, leaving the public with no reason to believe that such a line exists anymore. Anything goes.
At the dawn of the communication revolution brought on by the advent of telephone, telegraph, radio and eventually television, the U.S. government established the Federal Communications Commission to regulate these industries to ensure they serve the public interest. Federal law prohibits the FCC from engaging in censorship or infringing on First Amendment rights of the press. That same law, however, makes it illegal for broadcasters to intentionally distort the news. The FCC is given the legal authority—and the responsibility as caretaker of the public’s airwaves—to take action against broadcasters that run afoul of the law, up to and including revoking their licenses.
Cable news networks operate outside these rules because cable, satellite and Internet services did not exist when the law establishing the FCC was written. There are no licenses to revoke. There is no clamor to update the law to make it relevant to today’s media landscape. So, anything goes. We once had the Fairness Doctrine requiring balance in news coverage. Bringing it back in its old form would be pointless, as it also did not apply to cable, satellite or Internet news and would need to be made relevant to how the news industry is now structured and currently operates. But despite a relentless blurring of lines that leaves propaganda and news reporting increasingly indistinguishable, even the venerable Society of Professional Journalists opposes reinstating the doctrine. With friends like these, those trying to do actual journalism need no enemies. They have plenty, though. So does the First Amendment itself.
A reminder: The First Amendment does not just grant us freedom of speech, but also freedom of the press, freedom of religion, as well as the right to petition our government and peacefully protest. These freedoms are in danger. At least eight states have criminalized political protest. Legislators from Tennessee to Montana recently were barred from doing the jobs they were elected to do for protesting. Hundreds of books are being banned all across the country.
Here in Wisconsin, a volunteer corps of citizens calling itself Wisconsin United to Amend has been working tirelessly to persuade local communities to hold advisory referendums giving voters the opportunity to weigh in on whether the U.S. Constitution should be amended to remedy the commercialization of free speech. Their proposed amendment makes clear that the rights spelled out in the Constitution belong only to individual human beings and not corporations, that money is not speech, and political spending can be limited to allow all Americans to participate in the democratic process.
Wisconsin United to Amend understands that there’s nothing free about free speech nowadays; it’s incredibly expensive. Legal rulings like the Supreme Court’s notorious Citizens United decision allowing unlimited corporate election spending leave most Americans with a right to speak but little practical ability to make their voices heard. To many, the First Amendment is more empty promise than cherished right.
Dedicated citizens like those who formed Wisconsin United to Amend know this and are trying to do something about it. The grassroots group has convinced 170 communities in every part of the state to let local residents express their wishes on the constitutional amendment. The referendums have been passed with an average voter approval of 81%.
The politicians who rule Wisconsin’s legislature don’t want to hear it, find it tiresome being petitioned in this fashion. Their response to this overwhelming expression of the public will is to try to ban local communities from holding such votes. Buried in the bowels of a bill dealing with state aid to local governments are not only strings attached to the funds like the heavy-handed requirement that local police maintain the number of arrests made in the previous year but also a prohibition on local communities holding public votes on advisory referendums.
With enemies of free expression like this, the First Amendment needs all the friends it can get. It may not seem like it sometimes, but they’re out there, if you know where to find some kindred spirits.
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It's time to stop using the 'fire in a crowded theater' quote
(Article by the Atlantic)