Is it OK to shout “Shariah” in a crowded theater?
Pushing that a bit on the speech side, how about “Allahu Akbar” in a crowded theater?
Or pushing it a bit in terms of delivery and venue, how about just conversing, using the term “Shariah” in a crowded store? Such speech recently prompted an actual move to the exits in a store rather than a theater, though no one was trampled.
It is worth reading Ken White’s review of the crowded theater issue over at Popehat. In it, he takes us through the constitutional history, in which Holmes plays a key role. The gist of it is that Holmes changed his mind and his reasoning as regards free speech.
Holmes initially allowed for a more restrictive approach. The cases that people fall back on to defend speech limitations (most notably three cases dealing with wartime dissent from 1919 and most notably among them Shenck v. United States) have been trumped by other cases that now form what he calls the “modern standard”. This modern standard was articulated later, in 1969, in Brandenbug v. Ohio:
These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.
White lauds Holmes for what he argues is a change of heart and mind. It is good that jurists can have second thoughts. But it does raise the gnarly issue of precedent.
White argues that Holmes had to dissemble quite a bit in attempting to square his new thinking with his old. Jurists have to do that. White says Holmes does not do so credibly. Holmes came out quite clearly in favor of the “modern standard” in his dissent, along with Brandeis, in Shafer v. United States.
The jury which found men guilty for publishing news items or editorials like those here in question must have supposed it to be within their province to condemn men, not merely for disloyal acts, but for a disloyal heart: provided only that the disloyal heart was evidenced by some utterance. To prosecute men for such publications reminds of the days when men were hanged for constructive treason. And, indeed, the jury may well have believed from the charge that the Espionage Act had in effect restored the crime of constructive treason. 2 To hold that such harmless additions [251 U.S. 466, 494] to or omissions from news items, and such impotent expressions of editorial opinion, as were shown here, can afford the basis even of a prosecution, will doubtless discourage criticism of the policies of the government. To hold that such publications can be suppressed as false reports, subjects to new perils the constitutional liberty of the press, already seriously curtailed in practice under powers assumed to have been conferred upon the postal authorities. Nor will this grave danger end with the passing [251 U.S. 466, 495] of the war. The constitutional right of free speech has been declared to be the same in peace and in war. In peace, too, men may differ widely as to what loyalty to our country demands; and an intolerant majority, swayed by passion or by fear, may be prone in the future, as it has often been in the past to stamp as disloyal opinions with which it disagrees. Convictions such as these, besides abridging freedom of speech, threaten freedom of thought and of belief.
To this, White remarks wryly that:
Anyone who can reconcile that with the Schenck cases is a better lawyer than I.
So we have good news and bad news here. The good news is that the modern standard is workable and has proven durable. The bad news is that jurists, like the general public, can be of many minds on free speech and the idea of changing one’s mind in the face of precedent is itself not without precedent.