A clear and present danger to our free speech rights

Few things set my teeth on edge more than someone quoting Justice Oliver Wendell Holmes’ classic rhetorical overreach to justify squelching free speech, but there it was again today coming out of the mouth a former Supreme Court justice.

Doug McMurdo’s story has retired Justice John Paul Stevens, right, arguing against a court ruling that upheld flag burning as protected speech, recounting the circumstances of Johnson v. Texas.

Today’s story paraphrases Stevens, “As the flag burned, Stevens recounted, the protesters chanted, ‘America, the red, white and blue, we spit on you.’

‘Those were fighting words. Much like yelling fire in a crowded theater that isn’t actually on fire is not protected speech due to the harm it could cause, Stevens said the flag burning and chants certainly could have incited violence.”

But it didn’t, and neither did the man who went to jail for what Holmes’ thought was tantamount to falsely shouting fire in crowded theater.

What Charles Schenck did was distribute a flier that questioned the constitutionality of the draft during World War I by citing the 13th Amendment prohibition against slavery and involuntary servitude. Holmes basically banned speaking out against the acts of one’s own government by petitioning it for redress of a grievance — a one-two punch to the First Amendment.

This is how Holmes’ himself described the flier:

“The document in question upon its first printed side recited the first section of the Thirteenth Amendment, said that the idea embodied in it was violated by the conscription act and that a conscript is little better than a convict. In impassioned language it intimated that conscription was despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few. It said, ‘Do not submit to intimidation,’ but in form at least confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed ‘Assert Your Rights.’ It stated reasons for alleging that any one violated the Constitution when he refused to recognize ‘your right to assert your opposition to the draft,’ and went on, ‘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.’ It described the arguments on the other side as coming from cunning politicians and a mercenary capitalist press, and even silent consent to the conscription law as helping to support an infamous conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of other lands, and added that words could not express the condemnation such cold-blooded ruthlessness deserves …”

Strong language calling for civil disobedience indeed, but violence?

But this is what Holmes’ famously said of this flier:

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

So, if a newspaper editorial were to encourage people to refuse to purchase the mandated health insurance under ObamaCare, would that create a clear and present danger to a substantive evil that Congress has a right to prevent?


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