Bryan Lewis asked yesterday about Holmes’ “falsely shouting fire in a crowded theater” analogy when talking about Schenck’s opposition to the U.S. involvement in World War I. Bryan asked what about when people are wrong in their speech but they honestly believe there’s a fire.
That’s a good question and it reminded me of a chapter in Zechariah Chafee’s Freedom of Speech (1920), written the year after Holmes switched his view and became a more ardent supporter or freedom of expression. The point of the analogy is that everyone recognizes that “falsely shouting fire in a crowded theater” triggers a dangerous and immediate response. But Chafee makes the point that what Schenck, Frohwerk, Debs and Abrams did was more like expressing concerns about the safety of the theatre.
I was going to give you the full Chapter because it addresses the points Audrie Trevino made about what’s wrong with having a different constitution in war time, but the chapter is long and dense. (But I enjoyed it.) Here’s a good paragraph from it though:
“How about the man who gets up in a theater between the acts and informs the audience honestly, but perhaps mistakenly, that the fire exits are too few or locked? He is a much closer parallel to Frohwerk or Debs. How about James Russell Lowell when he counseled, not murder, but the cessation of murder, his name for war? The question whether such perplexing cases are within the First Amendment or not cannot be solved by the multiplication of obvious examples, but only by the development of a rational principle to mark the limits of constitutional protection.”