silence!
I was more than a little astonished to see Diane Feinstein writing in The Wall Street Journal yesterday, attacking Julian Assange and Wikileaks, and using the defense of ‘yelling fire in a crowded theater’ as some kind of rationale for an abrogation of Free Speech.
“As for the First Amendment, the Supreme Court has held that its protections of free speech and freedom of the press are not a green light to abandon the protection of our vital national interests. Just as the First Amendment is not a license to yell “Fire!” in a crowded theater, it is also not a license to jeopardize national security.”
In light of this rationalization, often used, I thought it would be instructive to take a look at the Supreme Court decision.
The case was Schenck v. US, brought before the Supreme Court in 1919.
The case against Shenck was a violation of the Espionage Act of 1917, which prohibited any attempt to interfere with military operations, to support America’s enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment
Schenck’s crime was printing and distributing 15,000 leaflets that opposed the World War I draft.
Today, I think, in light of Vietnam, we would all support Schenck’s right to oppose the war.
But not then.
Schenck’s lawyers argued First Amendment and in a decision that was rather shocking in its clear abrogation of First Amendment Free Press rights, the court created the ‘clear and present danger’ clause, which noted that Free Speech could, in effect, be overridden by that speech creating a ‘clear and present danger’, particularly in time of war.
Justice Holmes used the term ‘shouting fire in a crowded theater’ as an example of creating a ‘clear and present danger’.
Schenck was ultimately overturned in 1969 in the Brandenburg v. Ohio decision, defending the right to free speech, and repalcing the clear and present danger clause with a very restrictive need to prove ‘imminent danger’. Free Speech was stronger, until now.
Although shouting ‘fire in a crowded theater’ is bandied about all the time, Holmes himself never suggested that you could ban shouting fire ina a crowded theater if the theater is on fire.
As the Wikileaks clearly point out – the theater is indeed on fire.
The US government has lied repeatedly about atrocities in Iraq (for example).
No one has accused any of the wikileaks of being lies.
On the contrary, the very ‘danger’ in them is that they are all true.
All too true.
And what they are really is embarassing to the government, to many governments.
So yes, Sen Feinstein, Julian Assange is indeed yelling ‘fire in a crowded theater’
And with good reason.
The theater is on fire.
Time to get out.
