Remember how ages ago, I mentioned that whenever a discussion about free speech gets going, “some idiot” sooner or later misquotes O.W. Holmes and says that free speech doesn’t mean you can yell “fire” in a crowded theater? When the fact is that you CAN yell “fire” in a crowded theater…provided there’s a fire. What Holmes said you cannot do is falsely shout “fire” in a crowded theater and cause a panic. And furthermore, Holmes’ comment was attached to a decision that had nothing to do with theaters, crowds, fires or panic. It instead supported a horrific lower court abuse of free speech rights, when a socialist named Schenck was jailed for years and heavily fined simply for advocating the notion that the draft was wrong. You remember the draft: It’s that thing they eventually abolished and now when politicians try to make each other look bad, they claim the other guys are talking about bringing it back.
The Holmes-quoted decision not only jailed Schenck, but dozens of other Americans over the following years because it advocated a fundamental concept: Disagreeing with the US government in times of war was a jailable offense.
You’d think people would learn. And yet there, on the “Daily Show” last night, was Zell Miller, discussing freedom of speech and misquoting Holmes, as if misquoting was a good thing. As if a court decision suppressing disagreement with the government was a good thing.
Thank heavens I was not in the audience of the “Daily Show” last night. Because I just KNOW I would have shouted out, “Holmes didn’t say that, you nitwit!” Which probably would have gotten me thrown out of the theater, but hey, it’s better than falsely shouting “fire.”
PAD
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you should actually e-mail that information to the Daily Show (if they didn’t catch it already). I think it would be possible for the show to make a decent joke about it.
oh, and the draft isn’t fully abolished. It’s still around, hiden in the shadows, waiting for the right chance to pounce on unsuspecting democrats.
Just what you need, another excuse for a duel.
Really. I think Zell lost his last tenuous grasp on reality when he made that duel challenge to Chris Mathews.
“you should actually e-mail that information to the Daily Show (if they didn’t catch it already). I think it would be possible for the show to make a decent joke about it.”
Well,I don’t have an e-mail address for them. If anyone out there does have it and wants to e-mail them a copy of my blog entry, feel free.
PAD
From the “Jon Stewart Intelligence Agency” web site:
“As far as we know, Jon cannot, and does not, want to be contacted via e-mail.”
They list your basic snail-mail address, but that’s rather less useful.
Also, (and I realize I asked this before, but I didn’t get an answer of any kind), whatever happened to the BID reprints? I was really enjoying them, and they stopped back in November without any explanation that I can find. Any chance they’ll be starting back up at some point?
Comedy Central Web Comment Form. Select Daily Show and comment away. Will you be shouting to the wind? Will anybody who cares actually read it? Shrug.
As one of the previous “idiots” who brought up that quote on this blog, I’m still not sure exactly what the misquote is. Whenever I’ve said “you can’t yell ‘fire’ in a crowded theatre,” I just figured it was understood that you CAN yell “fire” if the theatre is on fire. Yelling it falsely is, of course, a different matter. Add to that the fact that I rarely mention Holmes, and I honestly fail to see what makes me an “idiot.”
As far as the court decision goes, does the context in which the often-misquoted statement appears change the truth of the misquote? I suppose if I were saying, “Well, OW Holmes believed this and only this about free speech…” then it would be important, but just to note the quote itself (especially to explain the basic idea that PAD explains early in his post) doesn’t seem to require a history lesson.
So I guess I have two questions:
1) PAD, what about what I’m saying above is missing your point? I feel like I’m sounding belligerent or defensive here, and I’m not trying to be a jerk, but when someone calls me an “idiot” and I put honest thought into the reason behind it and still don’t quite get it, I become confused.
2) Is the quote (and the basic idea it explains) inextricably linked with the Schenck case even when one doesn’t say “I’m quoting Oliver Wendell Holmes here”?
Thanks for the clarification and education.
Eric
I always liked the Abbie Hoffman bit of wondering if it was OK to yell “Theatre” in a crowded fire.
Heh, as if any right-minded person would ever listen to what Zell Miller has to say. (Well, I suppose right-minded people will listen, but I digress.) Nevertheless, it does have to make you wonder about the Georgia Democratic Party. He’s so much a DINO, the Flintstones can often be found feeding him.
The main email address for the show is thedailyshow@comedycentral.com.
Jon does not have a publicly posted email address. If you email me, I’ll give you the individual addresses for the producers. (No way I’m posting ’em.) 😉
Can you yell “fire” in a theater that isn’t crowded? What about “water?” Or just “Bad movie?”
Seriously though, in response to the following:
2) Is the quote (and the basic idea it explains) inextricably linked with the Schenck case even when one doesn’t say “I’m quoting Oliver Wendell Holmes here”?
I can’t speak for PAD or anyone else, but I think that yes, the quote is “inextricably linked” to the source, if for no other reason than to question or criticize the wisdom of the quote (which I think is precisely what PAD is doing).
I returned to college recently, and as an English major I’ve had to write my fair share of papers in the past two semesters. It’s caused me to question why so many sources have to be cited in academic work.
I think there are a lot of very good reasons why sources have to be cited, and the reasons that speaks most to your question is that if you’re going to borrow someone else’s wisdom/arguments/whatever, then in order to be fair you need to be open about where the quote is coming from so the reader/audience/whatever can decide on their own if you’re using it in the correct context.
I mean, if I write a paper arguing for the legalization of drugs, and I quote someone saying “heroin is good for you and helps to build strong bones,” if it turns out that the source of that quote is Sid Vicious (it isn’t, just made it up), well then the reader knows that that might not be trustworthy information.
In the case of the Holmes quote, I think PAD is right in point out the context in which it was originally uttered. After all, when do public figures EVER bring up that phrase when they’re NOT trying to do something similar? I mean, there really haven’t been many explosions in “falsely-yelling-of-FIRE” crimes in any part of the country as far as I know.
C’mon PAD, do you really expect politicians to know what thet’re talking about? Especially the ones from thre lunitic fringe?
I always liked the Abbie Hoffman bit of wondering if it was OK to yell “Theatre” in a crowded fire.
Why not… I regularly shout shark in crowded elevators. It confuses the hëll out of people.
I’m another one of the idiots; I, too, used it as an example of a type of speach that the First Amendment does not protect, which it is given the assumption that the theater is not actually on fire.
I agree with PAD on most things, and I can understand being upset when the quote is misused, but I also think that intelligent people would assume that “fire” example applies to theaters that are not, currently, burning.
The fact of the matter is that shouting “fire!” in a crowded theater (implication being that it’s not on fire at the time, DUH) IS a form of speech that is not protected. Similar to death threats, libel, and slander.
Phinn
In fairness, judging from Miller’s advanced age, he may well have been present when Holmes first made that quote and thus heard it correctly at the time. For that matter, I believe he was also present when Moses first came down from the Mount carrying the seven commandments, giving him three extra ones for good measure.
The Smothers Brothers did a classic bit about falling in a vat of chocolate. tom says he yelled fire, dìçk asks why, tom replies that no one would come if he yelled “chocolate”.
I’m sure it’s never happened in real life – let’s replace “sure” with “certainly hope” – but I wonder if anyone ever written a story about someone seeing a fire start in a crowded theatre and not soind or saying anything about it, alowing it go grow out of control, because they believed it was illegal to yell “fire” in a crowded theatre?
and this topic always reminds me of those various rock’n’rollers who have written songs that legally allowed them to shout “Fire” in a crowded theatre. I’ve always wondered if they deliberately did it just to defy the aphorism.
Examples include The Doors “Unknown Soldier” with an instrumental passage containing a simulated firing squad execution complete with “Ready… aim… FIRE!”, rimshot on the drum and Morrison falling down,
and Sinead O’Connor’s “Fire On Babylon”.
There are a lot of others, like “Fire” by the Jimi Hendrix Experience” or “Fire” by Bruce Springsteen (covered by both The Pointer Sisters and Robert Gordon) and no doubt hundreds of other songs with the word fire in the lyrics or specifically the chorus,
but I was specifically looking for examples of singers actually shouting the word.
Like “Fire” by “The Crazy World of Arthur Brown” with its introductory exclamation of:
“I am the God of Hellfire, and I bring you FIRE!”
As far as I know, O’Connor and Brown were never arrested. Morrison was, but not for yelling “fire.
I returned to college recently, and as an English major I’ve had to write my fair share of papers in the past two semesters. It’s caused me to question why so many sources have to be cited in academic work.
I think there are a lot of very good reasons why sources have to be cited, and the reasons that speaks most to your question is that if you’re going to borrow someone else’s wisdom/arguments/whatever, then in order to be fair you need to be open about where the quote is coming from so the reader/audience/whatever can decide on their own if you’re using it in the correct context.
I’ve run across this in the various attempts of creationists to push their ilk into the school system. They are notorious for misquoting primary sources, taking out material without indicating and quoting out of context to give the material the opposite meaning of what the author intended.
Quote mining, like this, is pretty reprehensible, and is unfortunately used by a lot of loose and muddy thinkers….
Are there any “Strangers With Candy” fans here? Remember the one with the priest who was advocating against free speech, saying, “Is it okay to yell ‘fire’ at a crowded book-burning?”
I loved that. He soon followed it up with another gem: “After all — did Jesus go around just speaking freely, spouting off any thought that came into his head? Yes. He did. And look what they did to HIM!”
I might actually be inclined to *side* with Zell Miller on this one.
At face value, “You can’t yell fire falsely in a crowded theatre” is true.
Holmes may have said it to justify a bad legal decision, and Zell Miller (erroneously) to justify some stupidity, but bad logic shouldn’t taint its premises.
George Orwell wrote an essay on Rudyard Kiping where he points out that even though Kipling’s views were vulgar and reactionary, it was hard to avoid using his phrases.
The resurrection of this thread does tend to prove that, if you can’t falsely yell “fire,” you can at least falsely yell “tyranny.”
PAD wrote, The Holmes-quoted decision not only jailed Schenck, but dozens of other Americans over the following years because it advocated a fundamental concept: Disagreeing with the US government in times of war was a jailable offense.
No it didn’t. It let stand Schenck’s conviction FOR ADVOCATING DESERTION FROM THE ARMY. That’s what he was convicted of– not arguing against the Wilson administration’s positions, not railing against the humongous waste of lives known as World War I, but actively soliciting people (soldiers) to commit a felony (desertion). The whole point of the frighted with false fire metaphor was merely to illustrate one simple concept: that referring to criminal coduct as “speech” doesn’t bring it within the protection of our civil liberties. If I asked PAD to run downtown and buy me some crack, it wouldn’t be free speech, it would be solicitation to commit a felony. I’d be jailed. On the other hand, if I asked PAD to dodge the draft, I couldn’t be jailed, because he’s not draft-eligible and thus could not possibly commit the crime I was advocating. (Hence the “clear and present danger” test– you can’t commit the offense of solicitation unless there is a real chance the crime solicited could be carried out.)
My attitude is that if you’re going to quote someone as an example of how knowledgeable you are, then you dámņëd well better get the quote right.
This attitude of “assuming the meaning” and thus giving a free pass to the speaker because, hey, you know what he *meant*, is part of what’s causing spiralling lack of exactitude in this country. The English language is becoming the oral equivalent of jazz or horseshoes, where close enough is okay. It’s part of the reason why intelligent people can’t understand the national tolerance for Bush’s inability to express himself. People give him a free pass because, hey, we know what he MEANT to say, so isn’t that sufficient? My response is, no, it’s insufficient. It represents a national lowering of standards, and that’s just sad.
The thing that makes the Holmes quote so insidious is that it’s an unassailable sentiment attached to a horrific decision. You read this decision and think, “Well, of course people shouldn’t be allowed to falsely shout fire in a crowded theater. That’s just wrong.” It’s the same decision that coined the phrase “clear and present danger.” The problem is that the high court of his country effectively determined that criticizing the government in time of war constituted a clear and present danger. These laws are still on the books; it’s the laws that Nixon tried to use to stifle the Pentagon Papers.
Does ANYONE think criticism of the government at time of war warrants prison time? Anyone?
PAD
Actually, I blurred an important distinction in my last post. Schenck didn’t merely “advocate” desertion in an op-ed piece in the Times. There was evidence adduced at trial that he and his cohorts actively sought out soldiers and passed out the fliers advocating desertion. Actively encouraging specific individuals to commit a criminal offense always has been a crime, and always will be.
These laws are still on the books; it’s the laws that Nixon tried to use to stifle the Pentagon Papers.
OK, apart from the humor in saying “it’s the laws” a paragraph after you assailed Bush for being inarticulate (and in all honesty he has enough problems speaking his mind that I cringed several times during the debates), I still have to take issue with your assessment of the state of the law. As you said, “Nixon tried to use” that case law. However, please recall that Nixon failed to suppress the Pentagon Papers. New York Times v. United States, 403 U.S. 713 (1971). And furthermore, the opinion isn’t at all “horrific” like you keep claiming. The case you want to argue– and one that provides you a better basis for criticizing Holmes himself– is Debs v. U S , 249 U.S. 211 (1919). Eugene Debs actually was sent to prison for behavior that should have been protected by the First Amendment. Schenck’s conviction was unassailable.
“No it didn’t. It let stand Schenck’s conviction FOR ADVOCATING DESERTION FROM THE ARMY. That’s what he was convicted of– not arguing against the Wilson administration’s positions, not railing against the humongous waste of lives known as World War I, but actively soliciting people (soldiers) to commit a felony (desertion).”
Really. A pretty devastating assertion. Problem is, in reading the actual pamphlet–which I have–I don’t see where he says that. Here. Read it yourself:
“Assert Your Rights
The Socialist Party says that any individual or officers of the law intrusted with the administration of conscription regulations violate the provisions of the United States Constitution, the supreme law of the land, when they refuse to recognize your right to assert your opposition to the draft.
In exempting clergymen and members of the Society of Friends (popularly called Quakers) from active military service the examination boards have discriminated against you.
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.
In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you are (whether knowingly or not) helping to condone and support a most infamous and insidious conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you.
They are your servants; not your masters. Their wages come from the expenses of government which you pay. Will you allow them to unjustly rule you?
No power was delegated to send our citizens away to foreign shores to shoot up the people of other lands, no matter what may be their internal or international disputes.
To draw this country into the horrors of the present war in Europe, to force the youth of our land into the shambles and bloody trenches of war crazy nations, would be a crime the magnitude of which defies description. Words could not express the condemnation such cold-blooded ruthlessness deserves.
Will you stand idly by and see the Moloch of Militarism reach forth across the sea and fasten its tentacles upon this continent? Are you willing to submit to the degradation of having the Constitution of the United States treated as a “mere scrap of paper”?
No specious or plausible pleas about a “war for democracy” can becloud the issue. Democracy can not be shot into a nation. It must come spontaneously and purely from within.
Democracy must come through liberal education. Upholders of military ideas are unfit teachers.
To advocate the persecution of other peoples through the prosecution of war is an insult to every good and wholesome American tradition.
You are responsible. You must do your share to maintain, support, and uphold the rights of the people of this country.
In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?”
The fact–if we dare clutter the discussion with them–is that Schenck did nothing illegal. Not only did he not advocate that anyone perform any illegal act, but I’ve found no record of a single one of the 15,000 draftees he sent his flier to refusing to report. Schenck did not create a panic. He did not represent a clear and present danger. He didn’t do anything except express a critical opinion of the government far milder than what one sees on the internet every single day.
And not only was he jailed and fined for it, but other people–under the same laws–were likewise jailed and fined SIMPLY FOR STATING THEY FELT THE US SHOULD NOT GO TO WAR.
And if the only way people nowadays can justify that horrific travesty of free speech rights is either to make false claims about what he said or act as if, because Holmes’ sentiment makes sense, therefore it was okay…well, that’s just pathetic.
PAD
Really. A pretty devastating assertion. Problem is, in reading the actual pamphlet–which I have–I don’t see where he says that. Here. Read it yourself:
Yep, I did. So did Holmes, and in fact he quoted it several times in the Court’s opinion. Holmes also asked a really interesting question about it: if they weren’t trying to persuade draftees not to report, why on earth would they stage a directed mailing of 15,000-ish fliers to recent conscripts? Again, this wasn’t an op-ed piece, it was a direct mail campaign. No person and no jury could possibly be stupid enough to believe that Schenck wasn’t trying to incite draftees to avoid the draft. Again, quoting the opinion, “Of course the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out. The defendants do not deny that the jury might find against them on this point.”
The fact–if we dare clutter the discussion with them–is that Schenck did nothing illegal. Not only did he not advocate that anyone perform any illegal act, but I’ve found no record of a single one of the 15,000 draftees he sent his flier to refusing to report.
That isn’t an element of the offense. The offense is socliciting someone to commit a crime. You don’t have to actually talk them into doing it in order to be guilty, which is why people still go to jail for hiring people to kill their wives, even when the people they try to hire are undercover cops.
And if the only way people nowadays can justify that horrific travesty of free speech rights is either to make false claims about what he said or act as if, because Holmes’ sentiment makes sense, therefore it was okay…well, that’s just pathetic.
I don’t have to be pathetic in order to disagree with your interpretation of someone’s actions 88 years ago, but it seems to help. Merely saying that a criminal prosecution is “horrific” doesn’t actually make it so, any more than hiding behind the First Amendment made Schecnk a martyr when he was really trying to interfere with a lawful government action (the draft).
I don’t know, PAD. You’re right that the quote, as it is usually phrased, is a misquote but I think the reaction from the audience would have probably been more along the lines of how one feels when some Trekkie loudly corrects someone who says “Beam me up, Scottie!”. It’s true, it was never actually said in the series, just as Holmes never said “Elementary my dear Watson.” But it’s no big deal.
Better to argue your other points. I, for one, disagree with David that Schenck was justly convicted–even if he DID advocate resistance to the draft, any more than they had the right to try to convict Martin Luther King for advocating the breaking of Jim Crow laws
I think that people do have the right to speak about breaking the law. If they go and actually DO it, well, then they have to expect to take their lumps. If it can be shown that their words were responsible for laws being broken, well, there are laws against incitement to violence. But the bar should be set pretty high for convictions. I know it’s against the law to advocate the assassination of the president but I wouldn’t want to see Randi Rhodes go to jail for her idiotic joke about shooting Bush.
Merely saying that a criminal prosecution is “horrific” doesn’t actually make it so, any more than hiding behind the First Amendment made Schecnk a martyr when he was really trying to interfere with a lawful government action (the draft).
I can think of a few other folks who tried to “interfere with a lawful government action,” including those obscure George Washington and Thomas Jefferson guys.
I can think of a few other folks who tried to “interfere with a lawful government action,” including those obscure George Washington and Thomas Jefferson guys.
Yes, they were leaders of an insurrection. If you’re conceding that Schenck was fomenting an insurrection, I think I win this argument.
Schenck’s conviction was “unassailable?” Hmm. Well, I’m no lawyer, but there’s a considerable body of writing from people who *are* lawyers who assail it just fine. To start with, I’d refer you to the Alan Dershowitz article “Shouting Fire” which ran in “Atlantic Monthly.” Dershowitz, in shredding the unjust punishment–and I quote this in order to stay true to the post that started this thread, regarding the oft’ misquoted Holmes line:
“…in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered. It has lately become–despite, perhaps even because of, the frequency and promiscuousness of its invocation–little more than a caricature of logical argumentation.”
Schenck’s actions did not impede the draft in the slightest. They presented no clear or present danger. They presented no falsehoods or untruths. He was jailed for doing nothing wrong, and the many others likewise jailed under the espionage acts also did nothing wrong. And the longer the Holmes quote is held up as some sort of positive example of jurisprudence, the longer that behavior will be tacitly endorsed by people who, more often than not, don’t even know the circumstances under which Holmes originally said it.
THAT is unassailable.
PAD
“…’heroin is good for you and helps to build strong bones…’ … the source of that quote is Sid Vicious…”
Hey, I’m just quoting Michileen Martin here…
(Oh, come on. You were thinking the same thing, and you know it!) 🙂
“That isn’t an element of the offense. The offense is socliciting someone to commit a crime. You don’t have to actually talk them into doing it in order to be guilty, which is why people still go to jail for hiring people to kill their wives, even when the people they try to hire are undercover cops.”
Well, you’re wrong on several levels. First, Schenck did not solicit someone to commit a crime. He advocated that people not submit to perceived tyranny…just like that bášŧárd, Thomas Jefferson. He advocated that people seek redress of grievances through the government. Wotta joik. He quoted from that notorious seditious document, the Constitution of the United States.
He said nothing untrue. Nothing. Even by Holmes’ own standards, he did nothing wrong, for his statements were not false, did not cause panic, and–since they deterred not one soldier from reporting–presented no danger, clear, present or otherwise.
The only “danger” was perceived by the governemnt–a government which, I remind you, lost at the lower court levels in a decision rendered by Judge Learned Hand. If you’re going to deprive someone of their liberty for a decade, you better be prepared to prove that they did more damage than just saying something you didn’t want to hear.
I notice you don’t address the fact that Schenck really didn’t do any damage, that his comments were neither untrue nor enducing of panic, and you haven’t begun to touch the fact that others were jailed for expressing the opinion that the US shouldn’t be going to war thanks to the Schenck case. I thnk it’s just sad that you would endorse such retrictive, dangerous judicial…dare I say it…activism.
PAD
I think that people do have the right to speak about breaking the law. If they go and actually DO it, well, then they have to expect to take their lumps. If it can be shown that their words were responsible for laws being broken, well, there are laws against incitement to violence. But the bar should be set pretty high for convictions.
Well, OK, but you have to accept that you’re advocating a change in centuries’ worth of legal doctrine. In my jurisdiction at least, the law does not distinguish between soliciting someone to commit a violent offense and soliciting someone to commit a victimless offense. PAD’s claim is that Schenck’s conviction was a misapplication– not to say travesty– of free speech law, which it’s not.
Well, you’re wrong on several levels. First, Schenck did not solicit someone to commit a crime.
Really? I’m pretty sure that’s what he was found guilty of doing. God, what a malfeasance. Stupid jury, mistaking someone sending a paper advocating desertion to draftees for someone who was trying to get draftees to desert. What were they thinking?
He advocated that people not submit to perceived tyranny…just like that bášŧárd, Thomas Jefferson. He advocated that people seek redress of grievances through the government.
Really? I didn’t see a peep in the document– which you quoted in its entirety– advocating a resort to the legal process for redress of grievances. The entire plea was to “assert rights” in the face of “officers of the law intrusted with the administration of conscription regulations.” Claiming that this was not an incitement to disobey the draft is disingenuous on the level of claiming that the Civil War was about states’ rights, rather than slavery.
Which right was the State of South Carolina trying to preserve? The right to have slaves in its borders. OK, thanks. Schenck didn’t use the magic words “please desert” any more than the SC Militia used the magic words “preserve chattel slavery” in its recruiting posters, but we’re not children here.
I notice you don’t address the fact that Schenck really didn’t do any damagethat his comments were neither untrue nor enducing of panic, and you haven’t begun to touch the fact that others were jailed for expressing the opinion that the US shouldn’t be going to war thanks to the Schenck case..
If I shoot at someone and miss, I cause no damage. If I do it from far away (rogue sniper that I am) and the person doesn’t hear the report from the gun, I don’t even cause a panic. Yet I am guilty of attempted murder.
Oh, and by the way, I did in fact cite the Debs case, which *does* seem to have been an unjustifiable conviction that partially relied on the Schenck case. So which definition are you using for “haven’t begun to touch on?”
PAD wrote:
My attitude is that if you’re going to quote someone as an example of how knowledgeable you are, then you dámņëd well better get the quote right.
But what if I’m not using the quote as “an example of how knowledgeable” I am? The basic idea (“You can’t yell ‘fire’ in a crowded theatre if the theatre isn’t on fire”) is perfectly sound and demonstrates an easy-to-understand case of restricted spech that doesn’t really infringe on freedom. I teach high school English, and at some point in the year, the concept of freedom of speech inevitably comes up. Some of the kids need the basic concept of “There are certain things you just can’t do. For example…” and the “fire in a theatre” example comes in awfully handy. Especially if I’m not mentioning O.W. Holmes and his use of it in the Schenck case, I don’t see how the source is relevant in that case.
That said, I really appreciated the history lesson the last time I mentioned this, because I didn’t realize how badly Holmes had misused the analogy. Comparing “Reject the draft!” to “Fire in a crowded theatre” is absurd and disturbing, I agree. Claiming this concept as a shining example of the wisdom of American jurisprudence or anything like certainly seems foolish to me now.
This attitude of “assuming the meaning” and thus giving a free pass to the speaker because, hey, you know what he *meant*, is part of what’s causing spiralling lack of exactitude in this country. It’s part of the reason why intelligent people can’t understand the national tolerance for Bush’s inability to express himself. People give him a free pass because, hey, we know what he MEANT to say, so isn’t that sufficient? My response is, no, it’s insufficient. It represents a national lowering of standards, and that’s just sad.
Hmm. I’d always seen the national tolerance for Bush (in general) as a combination of people agreeing with the ideas he espouses and a lack of critical thinking that prevents people from realizing the implications of his ideas. I’m not sure I would agree that America is sliding down the tubes of insufficient expression.
The thing that makes the Holmes quote so insidious is that it’s an unassailable sentiment attached to a horrific decision. You read this decision and think, “Well, of course people shouldn’t be allowed to falsely shout fire in a crowded theater. That’s just wrong.” It’s the same decision that coined the phrase “clear and present danger.”
1) So you do agree that, on a basic level, the statement about “yelling ‘fire’ in a theatre” is “unassailable sentiment”? Am I to understand, then, that I would not be considered an “idiot” if I used the basic quote only as an elementary example of non-protected speech? As long as I’m not citing the “horrific decision” as equally true and wise, I’m okay?
2) The “clear and present danger” standard is no longer in use, is it? I thought the new standard (established sometime around the Vietnam War) was “inciting imminent unlawful action” or something similar, and that, under that standard, the Schenck case would have gone the other way? Again, clarification/correction is welcomed.
Does ANYONE think criticism of the government at time of war warrants prison time? Anyone?
I certainly don’t. I have yet to read any free speech opinions of yours, PAD, with which I don’t agree. However, I am consistently surprised by your anger over this one quote which is so often used unattached to Holmes or Schenck. (If it is used attached to either of those, then I understand.)
Eric
Wow. A lot of to do about nothing. I am serious. I agree with the post above that said your points really do not rest on whether Miller got the quote right or not. It is just an excuse to call a conservative an idiot. Which is your right to do if it makes you feel better.
If we wanted to get into the misuse of quotes, the so called “wall of separation of church and state” comes to mind. Research it and it in no way calls for removing religion from schools or the public square. Quotes do tend to take on a life of their own. I prefer to debate the issues as they now stand.
Iowa Jim
Schenck’s conviction was “unassailable?” Hmm. Well, I’m no lawyer, but there’s a considerable body of writing from people who *are* lawyers who assail it just fine.
And I can fire back a stream of lawyers who think it’s perfectly valid, starting with me. It isn’t the first time I’ve disagreed with Dershowitz. Like that time that he advocated allowing the torture of terrorists if we really need the information they might have, as long as law enforcement personnel got a warrant first. His line of reasoning seems to be that, since we can’t trust law enforcement not to torture, we might as well regulate it. I really disagreed with him on that one. There is a legal aphorism that “hard cases make bad law.” It’s a true description, but Dershowitz seems to interpret it as a call to arms, making bad law in every hard case he encounters.
And in case you think I’m joking, here’s your champion of the First Amendment.
http://groups-beta.google.com/group/alt.impeach.bush/msg/814527884aa6c904
http://edition.cnn.com/2003/LAW/03/03/cnna.Dershowitz/
“seperation of church and state”. That is my favorite misquote.
I don’t get it, PAD. Are you saying that wording originally applied in the wrong context is therefore completely invalid, and should never be repeated, even in the proper context? Or do you just have a pet peeve about misquotations? I disagree with the former and agree with the latter (though I wouldn’t say it’s a pet peeve of mine).
“seperation of church and state”. That is my favorite misquote.
Actually, it’s a fairly accurate reference to “wall of separation between church and state.” It’s just not a quotation from the Constitution.
PAD, I tend to agree with you on this, but as a jazz musician, I’d love it if you never used the words “Jazz” and “George Bush” in the same sentence, especially when you’re equating the freedom of expression with the freedumb to sound like a complete ášš at every turn.
Now if you were to craft a sentence like, “George Bush helped Jazz musicians everywhere by winning the election, providing inspiration for rage-filled songs about monkeys with the power to kill us all.” I might be behind it. But saying jazz is anything like butchering the English language is just plain wrong.
And the guys who are “close” in the way the George Bush is “close” are the guys that don’t get called for the gig. If you’re gonna be close, you better be a dámņ sight closer than Dubya EVER is, or you’re going to find yourself a really sad and lonely jazz musician.
It’s nitpicky, and I’m sure you didn’t mean anything by it, but it’s hard enough to combat a public that thinks Britney Spears is music without people saying misleading things about an artform that one lives and breathes.
I just read the pamphlet. Twice. Here’s my $.06 (Adjusted for inflation.)
Although I agree with PAD that this conviction was the result of a serious miscarrige of justice, I have to agree with the conservatives here that telling people to break a law because it is unjust does not mean someone is innocent. Yes, Thomas Jefferson did it, and yes, the world (or at least this landmass)is better for it, but the fact that soceity later came to accept the injustices he protested as injustices does not neccessarily negate the fact that breaking the law has consequences. Jefferson and co. started a war. What I have come to argue about, however, is semantics, pure and simple. No matter how many times I read that pamphlet, I cannot see how you could prove, legally, that he was encouraging soldiers to desert.
He doesn’t once say “do not report for duty.” He says “assert your rights.” Now, maybe that term is vague. Maybe he really meant “do not report for duty” but used “assert your rights” because it was less likely to land him in jail, but no one but the man himself knows what that inetention is. What the law is concered about is what he said.
He said “assert your rights,” which could involve a lot of things. Writing to your congressmen, signing petitions, speaking out at legally-assembled protests.
I’m going to try to make a modern analogy: A guy walks up to me on the street and says, “buy some weed off of that drug dealer on the corner,” he is guilty of solicitation, assuming that there’s a drug dealer on the corner, whether I buy it or not. He told me to commit a crime.
The same guy walks up to me on the street and says, “the possession, sale, and use of marijuana should be legal, and here’s why,” and proceeds to convince me. At no time does he tell me to buy weed, he just informs me of why he believes that I should be able to. I sign his petition. Prehaps I’m inspired enough to start walking up to people on the streets to try to convince them to do the same. If I don’t buy (or grow) weed, no crime has been committed.
The same guy walks up to me on the street and says, “the possession, sale, and use of marijuana should be legal, and here’s why,” and proceeds to convince me. Again, at no time does he tell me to buy weed, he just informs me of why he believes that I should be able to. I sign his petition. Then I walk to the drug dealer on the corner and buy some weed. I am guilty of possession, but the guy is not guilty of solicitation — even if I never would have done it before he spoke to me, the fact that he convinced me that the laws against marijuana are wrong does not mean he convinced me of breaking them.
Schenck attempted to raise a protest concerning a law he thought unjust. While doing so, he attempted to reach the people he considered to be the victims of this injustice, hence the mailing to soldiers. He told these victims that they should “assert their rights.” The draftees had no Right to Desert to “assert.” They did have the Right of Free Speech and, therefore, the Right to Protest, and Schenck implores them to use it. That is all he did and that is protected under the First Ammendment.
PAD wrote: “Does ANYONE think criticism of the government at time of war warrants prison time? Anyone?”
Didn’t Abraham Lincoln, when he suspended habeas corpus during the Civil War? I’m being a tad sarcastic here, of course.
The fact is, you are pumping exaggeratory steroids into your argument when you say people got prison time for just criticizing the government. From what I’ve read, such arrests were typically for acts of sedition, treason or other illegal acts (as someone else here pointed out), not just criticizing policy.
I think part of the problem in debating the Schenck case is whether people think that “legal” is the same as “just.” Schenck’s conviction may have been legal (which is questionable) but it certainly wasn’t just.
One of the founding concepts of the US of A is that it is the people’s duty to stand up against unjust and corrupt practices on the part of the government, a heading under which a draft most certainly falls.
If Schenck was inciting anything, he was inciting people to stand up for their rights as free citizens, which of course, is one of the things a corrupt government will always rush to stamp out.
Not to say that the American government is entirely lost to corruption, but I’ve noticed that if there’s one thing it absolutely will not stand for, it’s anybody gettin’ in the way of blowing up some foreigners real good.
-Rex Hondo-
Hey! the phrase I made up “exaggeratory steroids” is a Googlewhacking success! Woohoo!
Heh, as if any right-minded person would ever listen to what Zell Miller has to say. (Well, I suppose right-minded people will listen, but I digress.) Nevertheless, it does have to make you wonder about the Georgia Democratic Party. He’s so much a DINO, the Flintstones can often be found feeding him.
OK, I have to admit that was a funny line. But Zell Miller has been a Democratic officeholder for nearly half a century. Why do you think he is a DINO? Why don’t he and his supporters have a voice in determining where the Democratic Party should stand on imporant issues? Y’all are free to make your own decisions, but I was under the impression that you were UNHAPPY about conceding 168 electoral votes to the Republicans every election. Perhaps your first step in addressing that problem could be not deriding one of the most successful southern Democratic politicians. Miller carried Georgia almost every time he ran statewide, whereas the national Democratic party hasn’t carried Georgia in a Presidential campaign since I was 3, it’s been that long here in North Carolina as well, Florida only went Democratic once in that period, and Virginia hasn’t gone Democratic since LBJ. This is notwithstanding the minor fact that Democrats held the governor’s office in Georgia from 1872 until 2003, and North Carolina has had only three Republican governors since Reconstruction. Republican George Bush and Democrat Mike Easley won NC in 2004 by roughly equivalent majorities, indicating that there are swing voters who would vote Democratic if the national party took them seriously, but expressions of disdain for not only the “red states,” but even for Democrats from the red states, basically ensure that these states will stay red for the foreseeable future.
I shouldn’t complain. It makes life very easy for us RINOs. Our party actually has a chance in hëll of nominating a moderate (Giuliani, McCain), and there will be a line out the door of conservative Democrats ready to back us.
I think part of the problem in debating the Schenck case is whether people think that “legal” is the same as “just.” Schenck’s conviction may have been legal (which is questionable) but it certainly wasn’t just.
I could get on board with that sentiment, except for the part about Schenck‘s legality being questionable. (Not to be picky, but when you have a Supreme Court opinion stating that X is the law, then by definition, X is the law whether you like it or not. For all practical purposes, the law is what the courts will enforce.)
In fact, if I recall correctly, the last time we argued this point I said repeatedly that, had I been the US Attorney in that case, I wouldn’t have prosecuted him.
Getting off track for a moment, (or is it back on track?) watching the Daily Show yesterday, I think when Miller lost me was when he equated Holmes with his problem with rap music. OK, now, I don’t listen to much rap, personally, but when you argue that “Baby Got Back” falls anywhere near what Holmes was talking about, I think you’re a couple stem cells short of a fetus.
On the other hand, I have to give Jon Stewart and the Daily Show in general credit for giving guests from all over the socio-political spectrum a chance to speak, whether they actually agree or not.
-Rex Hondo-
I missed the interview. Did he say he was quoting Holmes? Or was he just mentioning the law?
I believe he mentioned Holmes, but don’t quote me on it. I believe it was something along the lines of “Holmes believed you didn’t have a right to shout ‘fire’ in a crowded theater, and I believe that rappers don’t have a right to shout filth in my grandkids’ ears.”
It was something along those lines, but I was winding down from a LONG night at work when I watched it, so feel free to correct me if I’m totally off-base.
-Rex Hondo-