You may have heard this myth before. I know I’ve heard it too many times to count, including by lawyers, First Amendment scholars, law professors, and even judges, including sitting Supreme Court justices.
The slogan is flat-out wrong.
Congress in 1918 passed and President Woodrow Wilson signed the Sedition Act, which expanded on the Espionage Act and made it illegal to:
- incite insubordination, disloyalty, mutiny, or refusal of duty in the military
- utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military
- urge, incite, or advocate any curtailment of production
- advocate, teach, defend, or suggest the doing of any of the acts or things in this section
- by word or act support or favor the cause of any country with which the United States is at war or by word or act oppose the cause of the United States
- provide “disloyal advice” discouraging people from buying war bonds
Violating any part of this law was punishable by a $10,000 fine and 20 years in prison. In addition to being excessively vague, this was perhaps the most egregious violation of free speech in our history. After a man was convicted of “conspiracy to violate the Espionage Act” under this new federal law, the Supreme Court unanimously upheld the law and the conviction in Schenck v. United States (1919). The justices held that discouraging people from participating in the military draft was not protected speech and could be criminalized because it encouraged people to break the law and threatened all Americans by weakening the military. As explained by Justia:
[T]he Socialist Party in Philadelphia authorized Charles Schenck to print and distribute 15,000 leaflets to the public . . .. The socialists declared that the Thirteenth Amendment prohibition against involuntary servitude meant that the draft was unconstitutional and should not be obeyed. . ..
As part of his reasoning for the anti-constitutional decision, Oliver Wendell Holmes analogized discouraging military service (a distant, minimal, future threat to the military’s morale) to “falsely shouting fire in a theatre and causing a panic” (an imminent threat that could injure or kill people within five seconds). Any child could understand that the comparison was insane.
Regardless, the policy was never binding. The specific case was about handing out fliers discouraging military service and arguing that a draft violated the 13th Amendment’s ban on slavery (which I find to be persuasive).
The Court was not presented with a prosecution for falsely shouting fire in a crowded theater. The question before it concerned the constitutionality of Schenck’s conviction for distributing anti-draft pamphlets. Holmes’s theater analogy was therefore dicta, not a holding establishing a categorical exception to First Amendment protection.
Perhaps more importantly, the SCOTUS has since overruled the landmark case of Schenck v. United States in multiple cases. The anti-liberty case is now considered “anti-canon” much like Korematsu, Dred Scott, and tragically inhumane decisions.
Furthermore, the claim fails every part of the Axelman Triad. It’s wrong when viewed through all three lenses: constitutional, principled, and practical.
The Constitutional Lens
The First Amendment is crystal clear: The federal government cannot restrict any speech, even if it could lead to harm. I prove in Suppression of Expression that the authors of the Amendment purposely enshrined absolute freedom of speech without any caveat with which the government could restrict speech.
The Principled Lens
You may not share my values, but I believe in (nearly) absolute freedom of expression. Therefore, prohibiting or criminalizing speech will nearly always violate my principles. If the Constitution didn’t exist, I would still have the exact same principles.
The Practical Lens
If you don’t care about the Constitution and if you have no principles, consider the practical application of criminalizing potentially harmful speech. Many a treatise have surely been written on the matter, and it’s easy to see how such a policy would be untenable. Who would be the arbiter of what speech is sufficiently dangerous? Judges? Politicians? If speech could be criminalized due to being potentially harmful in the future, how many other statements could you think of that might give rise to a prosecution under this law? I could think of around a million. Denying global warming’s catastrophic nature, supporting or opposing gun rights, opposing war, supporting Israel (or Muslims or any other group that might be considered controversial), supporting or opposing pharma companies, supporting or opposing a politician or party, supporting or opposing any law, and the list goes on infinitely.
A Bonus Lens
If someone perpetuates or supports the false assertion, they’re implicitly arguing that it should be a crime to distribute anti-war pamphlets. Few people I know would admit to holding such an opinion.
All this being said . . . legislators and courts have criminalized peaceful speech in thousands of cases, which I address in Suppression of Expression. I promise that my book is not nearly as optimistic as this article!
This article does not necessarily reflect the opinions of The Liberty Block or any of its members. We welcome all forms of serious feedback and debate.
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