With the rest of civilized America prepared to be gloriously uncivilized during the Super Bowl, I somehow found myself stuck reading a 1919 Supreme Court opinion, Schenck v. United States, in which an overweening government gleefully prosecuted one Charles T. Schenck, general secretary of the Socialist Party in Philadelphia, for distributing leaflets urging Americans to resist intervention in the First World War. With the benefit of a century’s worth of hindsight, it’s clear that Schenck was providing Philadelphians with good counsel for bad reasons, but Judge Oliver Wendell Holmes wrote in his majority opinion that his agitating against mass slaughter of the Western Front “will bring about the substantive evils which Congress has a right to prevent.” A substantive evil was visited upon the United States, of course, in the form of 118,000 deaths in France, for a war that bequeathed to the world the Treaty of Versailles and a restless, humiliated German nation.
I was motivated to read the Schenck decision--which both glazes and opens the eyes--because of a piece here at The Daily Beast by Thane Rosenbaum, who beseeched us First Amendment fanatics--those of us who believe that the antidote to ugly speech is more speech-to think more like European free speech restrictionists, considering fines or jail terms for those who say terrible, offensive, racist things. Rosenbaum wastes little time declaring that because speech in the United States isn’t entirely unfettered, we should be willing to fettered it further. This is always followed by that hoary cliche, a favorite of the enemies of free speech, “There is no freedom to shout ‘fire’ in a crowded theater."
Count the times you have encountered this argument, invariably offered by those who pretend to be worried about trampling innocents in a crowded theater but are more interested in trampling your right to say whatever you damn well please (one can yell ‘fire’ in a crowded theater if there is, in fact, a fire; one can yell ‘fire’ in an empty theater; one can yell ‘fire’ in a crowded theater if one thinks there is a fire, but turns out to be mistaken). But few know that it was Oliver Wendell Holmes who first used the ‘fire in a crowded theater’ argument in Schenck--and it was used in defense of imprisoning a dissident socialist opposed to American intervention in a stupid European war. Schenck was overturned, thankfully, in subsequent Supreme Court decisions, which correctly viewed it as doing violence to the First Amendment. As Gabe Rothman, legal counsel for the ACLU, wrote in 2012, “The ‘crowded theater’ example is worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech."
So who decides what unpopular speech should be illegal speech? Rosenbaum doesn’t say, though I’d hazard a guess that it runs parallel with speech that he finds injurious and potentially harmful. But to the United States' credit, such impositions on speech are exceedingly difficult to create, considering that the broad right to say what we please is codified in the Constitution.
That we’re one of the few countries in the Western world that takes freedom of speech seriously means, according to Rosenbaum, that we are actually behind the times: “Actually, the United States is an outlier among democracies in granting such generous free speech guarantees. Six European countries, along with Brazil, prohibit the use of Nazi symbols and flags. Many more countries have outlawed Holocaust denial. Indeed, even encouraging racial discrimination in France is a crime. In pluralistic nations like these with clashing cultures and historical tragedies not shared by all, mutual respect and civility helps keep the peace and avoids unnecessary mental trauma.” So one would assume that racial discrimination has been dumped on the ash heap of history in France, considering racist thoughts and symbols have been made illegal. How, then, does one explain that the National Front, whose former leader Jean-Marie Le Pen was found guilty of Holocaust denial, is now the most popular party in the country?
For someone interested in upending how Americans perceive free speech, Rosenbaum presents a series of paper-thin arguments. For instance: “We impose speed limits on driving and regulate food and drugs because we know that the costs of not doing so can lead to accidents and harm. Why should speech be exempt from public welfare concerns when its social costs can be even more injurious?” That should knock the wind of you, dear reader, to think that the FDA’s regulation of Thalidomide or a state’s imposition of speed limits, both of which aim to reduce the physical harm visited upon innocents, is similar to jailing a Holocaust denier or Islamophobe. But Rosenbaum says that this all of a piece, because “recent studies in universities such as Purdue, UCLA, Michigan, Toronto, Arizona, Maryland, and Macquarie University in New South Wales” have demonstrated that being offended can have physical manifestations, and while “physical pain subsides; emotional pain, when recalled, is relived.” So, in a way, the emotional pain caused by malicious speech is worse than being physically assaulted. For someone interested in curtailing constitutional protections on speech, that’s a pretty thin gruel.
"No right should be so freely and recklessly exercised that it becomes an impediment to civil society,” Rosenbaum writes, “making it so that others are made to feel less free, their private space and peace invaded, their sensitivities cruelly trampled upon.” Read that again, if you can manage. A cherished right--the freedom to say what you please, no matter what political party, group, of religion is discomfited by your unapproved thoughts--should be curtailed if someone feels their “private space and peace [are] invaded, their sensitivities cruelly trampled on.” Forget about race and sex for a minute and count the court appearances that would be required of Richard Dawkins or Sam Harris for “trampling the feelings” of the mystical and superstitious.
The mania for “sensitivity” that infected the university during the 1990s--and apparently continues to this day--was once considered something of a novelty, a fleeting annoyance. But it seems to have metastasized into something else indeed, effecting everyday communications (generally a good thing) and workplace behavior (theoretically fine, though always absurdly defined), and now people like Rosenbaum want to codify it into law (utter madness).
I'm offended by this suggestion. It has caused me a few sleepless nights. My esophagus burns when I think about it. And then I realize...If only I could report Rosenbaum to the police.