Many in the United States appear to be losing faith (and patience) with free speech. Various Democratic leaders and commentators have called for limits on free speech to target “alt-right” groups, from declaring them terrorists to denying them the right to demonstrate in public. This week, House Minority Leader Nancy Pelosi (D-Calif.) offered a mixed metaphor as a substitute for our bright line rule protecting speech.
Pelosi demanded that the National Park Service deny a permit for the conservative “Patriot Prayer” event in San Francisco. In an interview, she said, “The Constitution does not say that a person can yell ‘wolf’ in a crowded theater. If you are endangering people, then you don’t have a constitutional right to do that.” In point of fact, there is nothing unlawful about yelling “wolf” in a crowded theater. Wolf attacks in movie theaters are not particularly common and unlikely to cause panic. Most urban audiences would assume it was a misplaced reference to a Kevin Costner film.
Pelosi appeared to confuse the quote of Oliver Wendell Holmes in the Supreme Court decision in Schenck v. United States, which said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Pelosi also appears unaware that Schenck, which is viewed as one of the court’s most troubling rulings, was effectively overturned in 1969 in Brandenburg v. Ohio.
{mosads}Ironically, Schenck is a case that should deeply offend most people. Charles Schenck and Elizabeth Baer were convicted under the Espionage Act of 1917 for simply opposing conscription. The two socialists called on their fellow citizens not to “submit to intimidation” and to “assert your rights.” They argued, “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,” and described military “involuntary servitude.”
Today we view such statements as core protected speech, but Holmes said that opposing a draft was like “falsely shouting fire in a theatre and causing a panic” and creating a “clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Consider that for a second. Merely opposing a war and conscription was deemed to be causing a “panic” and a “substantive evil” that the government must prevent.
Pelosi’s garbled use of Schenck is telling. It is not those speaking but those who want to silence speech that are a “clear and present danger” to our system. Just as the Wilson administration was furious with those who opposed the war, Pelosi is furious with those who oppose her values. By simply declaring their speech as inciteful, Pelosi wants the government to stop them from speaking on public grounds.
Of course, she ignores that many would view liberal groups as inciteful and “evil.” Many conservatives have objected to the violence at Black Lives Matter and Antifa protests. Indeed, many liberal groups now oppose the same type of military interventions by the Trump administration that Schenck opposed in the Wilson administration.
Pelosi’s “schencking” of free speech places her on the wrong side of history but nevertheless with a growing group of speech-phobic liberals. Among the chorus of people criticizing free speech as a weapon of the right are two professors who wrote recent columns in the Washington Post and New York Times.
In a column in the Washington Post, Skidmore College Professor Jennifer Delton decried how “provocateurs seek to bait liberal institutions by weaponizing the concept of free speech.” She warned that free speech is facilitating rather the deterring these groups and that “quoting Voltaire is not going to preserve anyone’s liberties — least of all those populations most vulnerable to vicious racist, misogynist and anti-Semitic attacks.”
Delton encouraged people to move beyond free speech inhibitions and, chillingly, that liberals have previously denied free speech to different groups: “American liberals were forced to sidestep First Amendment absolutism to combat a political foe… when New Deal liberals purged U.S. communists from American political life.” While Delton stops short of calling for purges of anyone deemed “alt-right,” she suggested that, given “the threat posed by the actions of alt-right provocateurs,” past censorship and criminalization of speech “may bear revisiting.”
In an editorial in the New York Times, K-Sue Park, a housing attorney and the Critical Race Studies fellow at the UCLA School of Law, rails against “color-blind” approaches which “support hate-based causes” and insists that such “colorblind logic [has] never secured real freedom or even safety for all.” She calls for an end to this broad protection of free speech as based on “a misguided theory that all radical views are equal” and that ‘it fuels right-wing free-speech hypocrisy.”
These voices advocate content-based discrimination of speech, long anathema in our country. It is part of a trend sweeping across the West with crackdowns on any speech deemed intimidating or inciteful or hateful. Pelosi would bar the right of conservatives to speak on the basis that their event might pose a threat to public safety, particularly given counter-demonstrators drawn to such events. Thus, free speech depends not only on what you are saying but how it will be received by others. The rally was canceled by the organizers out of concern over counter demonstrators, but Pelosi believes that the group should not have been given the choice.
We do not need the First Amendment to protect against popular speech. Pelosi and others seek to convince a free people to surrender a core freedom by focusing on how free speech is being used by unpopular groups. They might just succeed in bringing about a new era of censorship. Voices calling for speech limits play to the fears of a society that can come to view free speech as an abstraction or even an irritation. The truly sad part is that they use free speech to convince others to diminish it.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.
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