We ultimately have free speech because it is the fastest and most effective way to arrive at an understanding of ultimate realities. Precluding people from speaking freely allows ignorance, division, and fear to fester, explaining why authoritarians are so virulently opposed to free speech. If everything is divided, it is fertile ground for the authoritarian with a "well-known solution to every human problem — neat, plausible, and wrong." (H.L. Mencken)
In Biden's address to the joint congress last night, there was a curious rhetorical passage.
BIDEN: "No amendment to the constitution is absolute. You can't yell 'fire' in a crowded theater." pic.twitter.com/JliS8DxJrb
— Daily Caller (@DailyCaller) April 29, 2021
Double click to enlarge.
The curiosity is:
You can't yell 'fire' in a crowded theater.
Biden is a law school graduate. He not only ought but almost certainly does know better. "You can't yell 'fire' in a crowded theater" was never the law, it was an analogy used by Justice Oliver Wendell Holmes in a very bad 1919 Supreme Court decision which was later overturned in 1969.
Never the law
An analogy
In support of a decision which was overturned 52 years ago
Why is our President being so mendacious? Even for the non-lawyer, the "You can't yell 'fire' in a crowded theater" argument was widely debunked nearly 10 years ago in It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote by Trevor Timm in the November 2, 2012 Atlantic Magazine.
The most generous explanation for the President's lie is that the "You can't yell 'fire' in a crowded theater" falsehood is that it is simply too convenient.
You see this all the time with the wonderful and useful site Quote Investigator. Readers write in trying to either understand a quote, or more frequently, to know who actually made the statement. Churchill, Twain, Mencken, some ancient Greek or Roman, Gandhi and others are frequently and lazily identified as the originator of a quotation when in fact they were not. QI finds out the truth.
QI does a wonderful job but what they frequently find is that among our more popular quotations, there is no one who originated the quote. It is a function of emergent order. Someone says something that resonates. Someone else turns the words just a little. Someone else later refines it yet further. Eventually it is honed into a well turned quote expressing a sentiment which resonates with everyone and is widely quoted. But the quote was the result of an evolutionary social process. As can be seen in today's lead QI article on the vivid quote Politician: Straddling the Fence With Both Ears To the Ground.
"You can't yell 'fire' in a crowded theater" was never the law. The law is that free speech can only be circumscribed when it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." "Kill the bastard" shouted while amongst armed ANTIFA rioters violently protesting against a jury decision and directed towards a police officer surrounded by the mob would be illegal speech. Yelling 'fire' in a crowded theater is protected free speech unless it is "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
President Biden either does not understand the law or, and I think more likely, is a lazy thinker using the compelling imagery of a bad analogy even though the argument was never the law and was rejected by the Supreme Court as an argument more than fifty years ago. Authoritarians want to censor and they do not brook free speech.
For a national leader to indulge in lazy rhetoric on a topic about which the public is divided and passionate is no sign of leadership. It is wantonly dangerous. I'd much prefer a politician straddling the fence with both ears to the ground.
I can't help but think of the Ray Bradbury quote in the afterword to the 1979 edition of Fahrenheit 451.
There is more than one way to burn a book. And the world is full of people running about with lit matches.
Now that's a real quote.
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