In March 1919 (Schenck v. US), Supreme Court Justice Oliver Wendell Holmes penned the oft-quoted phrase certifying that “falsely shouting fire in a theatre and causing a panic” was speech that Congress could prohibit and prosecute offenders. The defendant Schenck had audaciously spoken publicly against the military draft. At the time, the nation’s population was 106 million and women’s suffrage was still a year away.
Fifty years later (Brandenburg v. Ohio), SCOTUS more narrowly defined the parameters limiting banned speech to those that would be directed to and likely to incite imminent lawless action. The defendant was convicted of seditious speech to a Ku Klux Klan group in Ohio. At the time, the US population was nearly double that of 1919 at 203 million, but 18-year-olds were not yet eligible to vote (that happened in 1971).
Today, the nation’s population is about 325 million–three times that in 1919, and 123 million greater than 1970. With the exception of some less populous states such as Wyoming, the United States is, indeed, a crowded, though not a yellow, fantasy capsule, chock-a-block with passengers. Amplified by social media, the voices of those who would falsely or otherwise shout fire in a crowded submarine have vastly increased their resonance, pitch, and loudness. False shouts morph into viral multitudes appearing on the personal electronic devices of millions, upon millions more to be retweeted and forwarded again and again.
Amplified by social media, the voices of those who would falsely or otherwise shout fire in a crowded submarine have vastly increased their resonance, pitch, and loudness. False shouts morph into viral multitudes appearing on the personal electronic devices of millions upon millions more, to be retweeted and forwarded again and again.
Fact, fiction, and what may be truth are blended until it is nearly impossible to detect reality. These phenomena now define the state of information and its transmission as well as the shape and content of our civic culture and dialogue. The phrase of a White House spokesperson – “alternative fact” – is apocryphal in this regard. Legal challenges to the results of the 2020 election have been submitted in briefs alleging rampant voter fraud. However, the evidence of that fraud has been absent on the theory that “voter fraud is undetectable.” Ah, the snake just swallowed its tail!
Lawyers seem willing to transgress codes of ethical conduct proscribing such behavior evincing false (at least factually questionable) legal argument. Now, 18 states of the union, represented by their attorneys general, have joined to challenge the election results in four sister states, an act, which if not secessionist, is at least hostile and seditious. In Congress, 126 House Republicans have signed as friends of the court to the Texas challenge. Late Friday, December 11th SCOTUS denied a hearing citing that Texas had no standing to bring the action against the election processes in sister states. The White House by way of a Hannity interview of its Press Secretary declared that SCOTUS was “hiding behind procedure.”.
At present, the pandemic is claiming over 3,000 deaths per day, galloping toward 400,000 since inception; the daily rate of confirmed infections has passed 250,000. In Idaho, a woman, a member of a county health commission, experienced her home surrounded by anti-maskers protesting against proposed measures to thwart the virus. In Michigan, the home of the secretary of state was the scene of protests by armed persons against the official for certifying its electoral votes. The protesters engaged in chants calling the presidential election a fraud.
It seems clear that most reasonable people, even protesters, appreciate the limits of falsely shouting “fire” in a crowded theatre. Similarly, that appreciation extends to protests that incite, or are intended to incite, lawless action. But the speech is not limited to groups perhaps encouraged by crowd mentality.
In a podcast, Trump consigliere Steve Bannon argued that disloyalty to President Trump by Dr. Anthony Fauci and FBI Director Christopher Wray might best be addressed by beheading them and hoisting them onto pikes in the White House. When a national cybersecurity official, Christopher Krebs, declared that the 2020 election was the safest in the nation’s history, he was fired by Trump. Not satisfied, Joseph diGenova, a sometime lawyer advocate for White House legal inanities, declared Krebs “should be drawn and quartered. Taken out at dawn and shot.”
Where are the boundaries? Even if one assumes that “falsely shouting” words that “incite imminent lawlessness” are evident, what is the remedy?
So, we wonder: where and what are the boundaries? Even if one assumes that “falsely shouting” words that “incite imminent lawlessness” are evident, what is the remedy? Ought the proscriptions be narrowed as the nation’s population has grown and protection from threatening speech has become virtually impossible? Will lawyers’ bar organizations tighten ethical codes to restrict attorney conduct and improve public trust in the profession? To make matters worse, rumblings emerge from the White House about imposing martial law.
Could it be that the submarine we live in is too crowded or populated with too many not wishing to be neighbors? Becoming yellow? For those of a certain age, an echo may arise of William Bendix as Chester A. Riley on the radio who was inclined to lament: “What a revoltin’ development this is.” The revolting development called the Civil War continues to exact a price upon the nation’s social fabric.