No Minister

Answers to Bad Anti-Free Speech Arguments

Aeromagazine has a superb article that deals with twelve such arguments that are commonly heard.

While the whole thing is worth your time to read I wanted to extract two in particular.

First up is the classic one about shouting fire! in a crowded theatre;

Answer: Anyone who says “you can’t shout fire! in a crowded theatre” is showing that they don’t know much about the principles of free speech, or free speech law—or history. 

This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes and point out that it is, in fact, as Alan Dershowitz puts it, “a caricature of logical argumentation.” Ken White has already penned a brilliant and thorough takedown of this misconception. Please read it before proclaiming that your least favourite language is analogous to shouting fire in a crowded theatre.

The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.

Oh, and notice that the court’s objection was only to “falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.

But I also appreciate the response to this more modern one that I often see on social media because it’s a cartoon.

Assertion: The right to free speech means the government can’t arrest you for what you say; it still leaves other people free to kick you out.

Answer: No, the popular xkcd cartoon below is wrong. The First Amendment limits what the government can do, but freedom of speech is something much bigger than that.

This cartoon is often used to dismiss free speech arguments, but it is wrong: it not only confuses First Amendment law with freedom of speech, it doesn’t even get the First Amendment right.

The concept of freedom of speech is a bigger, older and more expansive idea than its particular application in the First Amendment. A belief in the importance of freedom of speech is what inspired the First Amendment; it’s what gave the First Amendment meaning, and what sustains it in the law. But a strong cultural commitment to freedom of speech is what maintains its practice in our institutions—from higher education, to reality TV, to pluralistic democracy itself. Freedom of speech includes small l liberal values that were once expressed in common American idioms like to each his owneveryone’s entitled to their opinion and it’s a free country. These cultural values appear in legal opinions too; as Justice Robert H. Jackson noted in West Virginia State Board of Education v. Barnette, “Compulsory unification of opinion achieves only the unanimity of the graveyard.”

While the United States Constitution limits only governmental behaviour on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a heckler’s veto.

The First Amendment also bars government officials from punishing your speech in many ways that don’t rise to the level of arresting you. To give just one example, since administrators at state colleges are government actors, they can’t tear your flyer from a public message board because they don’t like what it says.

A belief in free speech means you should be slow to label someone as utterly dismissible for their opinions. Of course you can kick an asshole out of your own house, but that’s very different from kicking a person out of an open society or a public forum. The xkcd cartoon is often used to let people off the hook from practicing the small d democratic value of listening.

Related to this is an excellent article by the American essayist, Roger Kimball, which looks at what he calls “crybullies” and their lousy impact on education:

There are two central tenets of the woke philosophy. The first is feigned fragility. The second is angry intolerance. The union of fragility and intolerance has given us that curious and malevolent hybrid I have called the crybully, a delicate yet venomous species that thrives chiefly in lush, pampered environments.

3 Responses

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  1. Reblogged this on Utopia, you are standing in it!.

    Jim Rose

    May 30, 2021 at 3:06 pm

  2. Terrific piece, thanks. Here we go again with cancelling the Speak Up For Women dates at libraries…hecklers’ veto…and many are male. ‘m reminded of that great Murphy Brown line…’you’ve got an awful lot to say for someone who doesn’t have a uterus’.

    hilarytee

    May 30, 2021 at 3:18 pm

    • I’d bet that a re-booted Murphy Brown nowadays would never include that line or make that argument.

      Tom Hunter

      May 30, 2021 at 5:57 pm


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