Opinion Freedom of Speech: The Case of "Schenck v. United States" and Freedom of Speech Thoughts

[Autumn McJavabean]

- The Case of "Schenck v. United States" and Freedom of Speech Thoughts -
​

TD ; DR at the bottom.

Greetings my dear friends, brothers and sisters and anyone in between. I present to you an argument against the use of the "shouting fire in a crowded theatre" statement and the argument for Freedom of Speech.

Did you know that the phrase "shouting fire in a crowded theatre" is often touted as a valid and sound argument against speakers who cry wolf in a crowded area or populated area? Yes, it's often used ad infinitum and it's been used since it's inception back in 1919 by the over-praised and fatuous Justice Oliver Wendell Holmes, who asked for an actual example of when it would be proper to limit speech or define it as an action gave that of shouting fire in a very crowded theatre. But do you actually know the history of this, almost, unknown case and why the phrase was used unjustly to imprison a group of Yiddish-speaking socialists? Do you know why? In short, they daringly argued against the first world war participation by the hand of President Woodrow Wilson. Here is the history and why Freedom of Speech is important. To show that the Government can also strip you of your rights at any given moment if they deem it so.

When the first world war broke out, a group of Yiddish-speaking socialists came to America, fleeing the country of Russia, handing out leaflets opposing President Wilson's participation in the first world war. A case went to the Supreme Court of the United States (SCOTUS) where they ruled not in favor of the Yiddish-speaking socialists free speech, arguing that, like shouting fire in a crowded theater is ~hate~ or dangerous speech, opposing the draft was dangerous speech.

The Yiddish people were imprisoned because they handed paper saying that the war was wrong and not to sign up. Completely avoiding any forceful drafts.
This became a case at the federal level called "Schenck v. the United States." [1] The argument was that this was a case that required looking at the Espionage Act of 1917. Again, take heed into the fact this was due to the distribution of papers, flyers, that the war was bad, we should not be in it and to dodge the draft. This was because it was seen by Holmes as criminal to "obstruct" the draft.

The Selective Service is known to all males United States citizens, in that once you turn 18 you MUST sign-up for the Selective Service, which means if the President deemed it so, he or she could enforce the draft, forcing all males to enlist in the military. Dodging the draft can lead to time behind bars. And after the Schenck v. United States case, at least for the time, it was also criminal to speak out against, not just the war, but the draft. Meaning, if you lived during WWI and said "the draft is a governmental overreach, do not sign-up," you would be placed behind bars.

Often, I hear people talk about the times America was great, referencing the early 1900's, despite it was arguably more authoritarian than a democratic regime as we see it today. And yes, America is a democratic regime. Regime does not mean authoritarian, it's a political system. There are two main regime types. The two are authoritarian and democratic regimes.

When you cite this line: "you can't shout fire in a crowded theatre." You used an invalid, easily and already highly debunked argument/statement.
Not to get to religiously focused, but this is similar to the *Pascal's wager*, which I've seen friends, family and even family of family use. Which is fine. I'll debunked or explain why Pascal's wager is a pseudo-ratio/argument. But to get to the meat and grind, they're both illogical, not rational and false arguments that are the antithesis of critical thinking and a hindering of Freedom of Speech or truth.

The fire in a crowded theatre argument is not true, and if anything, those Yiddish-speaking people were the real firefighters in a very crowded theatre, indeed. But who is to decide? Keep that if you might, we will get back to it later. First, read this:

*_"Freedom of speech is meaningless unless it means freedom of the person who thinks differently."_*

Not everyone agrees with me or some will argue that freedom of speech does not mean freedom of consequences. What does that mean? Deplatforming speakers? Punching or fighting? Blow horning or shouting? I would like to know what they mean when they say this. What they're implying.

Typically the things I listed above are tactics used by the left and right to stop speech they do not like. Yes, the right also hinders free speech and has a history of doing it as well. Just in different ways.

In elementary, I was taught how to act during a fire and to calmly walk out, that rushing out and pushing people down like it's Black Friday is dangerous. By pinning the blame on the speaker, you're pinning the action of individuals who apparently can't control themselves on someone else. Sorry, but you're responsible for your own actions.
By putting the blame on the speaker for shouting fire, literally in a crowded theatre, you put the blame of the peoples own actions on someone else, removing them of all control of their actions. If you believe in free-will, which I do not and will attempt to argue against later, you can't do that. That would be like being a Christian but you don't actually believe in Jesus as the son of God and savior of humanity. I'll deal with that in a separate post as well. I'm sure my friend -Removed- would like to help me with that, seeing as this is a time of year were religious fanatics come out, but I digress.

Why is that phrased used? If you mean it literally, what happens the cry of wolf that it's bad to falsely shout fire in a crowded theatre? I can only imagine it has to do with the stampeding crowd like Black Friday, harming other people. Well, are they responsible for their own actions? If you say yes, you can't blame the speaker. If you say no, then why is the speaker responsible for their own actions? I'd argue many numbers of things could have caused it. Why is he responsible?
Often I have heard growing up that it is also illegal. It's not. It was simply an opinion made by *Justice Oliver Wendell Holmes* in _1919_, it's *_not a law_* nor has there ever been a law from the SCOTUS, which they can't even make and Congress never made one, and nothing in the Constitution has been ruled that it's unconstitutional to shout fire in a theatre falsely. It's not illegal, that is a lie.

I bring this up because it's been on my mind for a bit and often people scarcely know the history of Schenck v. the United States. They narrow-mindedly will cite that one opinion because people thought it sounded good without knowing the history or even its debunked by Zechariah Chafee in their wonderfully well-written piece _"Freedom of Speech in War Times."_ [2]

Furthermore, *_The Espionage Act of 1917_* [3], the ruling in question, would then say, as SCOTUS only deals with interpreting the constitution, that it's unconstitutional to speak out against the draft and you can be arrested, detained, imprisoned or jailed because it's illegal, as it's a crime to do so, as people did serve long sentences for it -- Up to 20 years for some. This in itself is pure inane of the highest order and clear Governmental overreach. How can I prove that? Simple. The ruling making it OK to jail or imprison anyone for their speech is innately unconstitutional from the get-go. The First Amendment of the Constitution states clearly that Congress, who makes the laws in, shall "make no law respecting an establishment of religion, or *prohibiting the free exercise thereof; or abridging the freedom of speech,* or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." [4]

As you can see, SCOTUS saying it's constitutional to hinder someone's free speech because the Government's feelings are hurt directly, and clearly, goes against the Constitution of the United States. It's evidently clear that even a child would understand it.

If you support the argument against absolute free speech, save for ones that arguably insight violence, like "I command you to kill the Jews," if you support Schenck v. United States' overall ruling and conclusion, if you support or use the "shouting fire in a crowded theatre" argument, typically speaking, you do not support Freedom of Speech. You do not support the First Amendment of the Constitution of the United States and, most of all, you do not support a reasonable, critically thinking society where all ideas, like the great hill in Athens, Greece, Areopagitica, are made available to be heard, unabridged, so that people can hear their arguments, make their choice and rebuke them in kind themselves. You then believe yourself to be self--censored. And who among you would give this job to be the self-censor for society? Is there anyone in America good enough for you to have decide what you can read or hear? I highly doubt it. I don't want it. And I demand a society where I can hear a flat-earther's arguments, a Neo-Nazi, a racist or a sexist and even a Holocaust denier or questioner to speak, so that I may hear what took them time to come up with, might in any case contain a grain of historical truth, might get people to think about why they know what they know and how do they know it to be true other than that they're told it's true?



*TD ; DR*


It's an invalid, illogical and aliberal argument by those who are almost exclusively ignorant of its actual history and use it often in their verbalized repertoire. It's antithetical to free speech and absolutely highlights American governmental overreach. Don't use it. Educate yourselves on the history of the SCOTUS as you'll see that your rights can be stripped away at a moments notice. We saw it with the Yiddish-speaking socialists and we saw it with the Japanese-Americans during the second world war.

Thank you.


Autumn McJavabean

Sources:

1) https://www.law.cornell.edu/supremecourt/text/249/47

2) https://www.jstor.org/stable/1327107…

3) http://www.digitalhistory.uh.edu/disp_textbook.cfm…

4) https://www.law.cornell.edu/constitution/first_amendment

 

[Idea]

"FIRE! FIRE!"

Imagine for a moment that that was my entire post. Just those two words that are one in diversity and zero in meaning within this context. Would I be communicating any ideas that need to be repressed? The answer is absolutely nothing. It would be a pointless comment because there would be no ideas behind it, no feedback, nothing. Well, admitedly, maybe there could be a joke behind it. Maybe.

Shouting "fire in a crowded theater" in the literal sense, is similarly not an idea you're expressing. Your thoughts and your perspective do not play a part in it, which is the first thing you misunderstood about that example, as well as my first point: Freedoom of speech is meant to protect your right to express and share your ideas and perspective, not to say whatever the heck you want. A prank is not protected by freedoom of speech and therefore it is not justified to infringe on anyone else's rights, which brings me to my second point:

By legally purchasing a product or service, in this case the tickets for the theater and the play, the person has the legal right to the product or service. By disrupting the theater with a prank, the person is violating the rights of others, and furthermore breaking the law (unless you do not have that law over there,in which case the harm to the dignity of others is still done).

You may object that, as you mentioned earlier, people are moving out of the theater out of their own free will. This is technically true, but also beside the point: The harm is not leaving the theater, the harm is the disruption to the play and spectation of the play, as well as the deception. Shouting fire in a crowded theater is coercion, the usage of force or deception to force people do something they wouldn't normally do. Deceiving people is entirely on the speaker.

So to recap, the speaker of their own free inflicts harm upon others violating their rights through coercion without any legitimate reason to do so. They are not expressing anything other than bad taste in humor and an utter disregard for other people. This is why shouting fire in a crowded theater is a violation of free speech.


Now, regarding the specific case where the argument of "shouting fire in a crowded theater" was applied, I have to agree: Silencing the people against the draft was a violation of their rights. That said, that's because the case didn't apply here. People were not being coerced, quite on the contrary a differing opinion was being presented to allow them to make a better choice, so both the major criteria are absent. So I am grateful for the decision, because ultimately Europe (where I live) would be a nazi or communist nesting ground today were it not for American intervention, but ultimately I have to agree it was government overreach, and not in line with the argument used for it, which was actually legitimate.


Regarding my own stance on free speech, while I support free speech I do not put it as my top priority. I believe that rights have a hierarchy firstly based on dependency on each other, thus putting life above freedom. You can die free but you cannot be dead and free, yet you can be alive and not free. Both rights are extremely important, but given the choice between defending someone's right to life and someone's right to freedoom of any kind, I believe the moral choice is to defend the life if both cannot be defended at once.

 

[Autumn McJavabean]

In Responce to "FIRE! FIRE!"

Imagine for a moment that that was my entire post. Just those two words that are one in diversity and zero in meaning within this context. Would I be communicating any ideas that need to be repressed? The answer is absolutely nothing. It would be a pointless comment because there would be no ideas behind it, no feedback, nothing. Well, admitedly, maybe there could be a joke behind it. Maybe.

To answer the first sentence: No, you would not.

Shouting "fire in a crowded theater" in the literal sense, is similarly not an idea you're expressing. Your thoughts and your perspective do not play a part in it, which is the first thing you misunderstood about that example, as well as my first point: Freedoom of speech is meant to protect your right to express and share your ideas and perspective, not to say whatever the heck you want. A prank is not protected by freedoom of speech and therefore it is not justified to infringe on anyone else's rights, which brings me to my second point:

That's factually wrong. The argument was the statement is a fatuous one made by those ignorant of its history. There was no arbitration in my choice to settle with this example. Using it in a figurative sense is legally OK and there's nothing wrong with it and is protected under the right to free speech. Likewise, so it shouting it when there really is or isn't a fire and you mean literally there is a fire. As I have argued above, the speaker is not to blame for the reaction of the people. It was a poor example and argument given by Holmes, who, when asked for an example when it would be proper to silence speech or define it as an action, gave that of shouting fire in a very crowded theater.

No one has argued you can say whatever you want in the sense of saying we should genocide the Jewish people, I have already covered that part. But shouting fire in a crowded theatre when there is no fire? Yes, you have the right to express that statement in just. I don't think you know the history of the SCOTUS or it's ruling on free speech or the intentions of the founders when the wrote the Bill of Rights if you think different.

Yes, it is. This is what I'm talking about, you don't know the history of the statement that Holmes made, which I explained above. He used it to give an example when it would be right to limit speech and gave that of shouting fire in a theatre, which he later retracted. Besides having already explained why you're wrong here, you don't actually back your claim up with how or why it isn't protected, you flat-out just say it is not. That does not fly with me, friend.

By legally purchasing a product or service, in this case the tickets for the theater and the play, the person has the legal right to the product or service. By disrupting the theater with a prank, the person is violating the rights of others, and furthermore breaking the law (unless you do not have that law over there,in which case the harm to the dignity of others is still done).

No, what? Do you not know how American laws work? It's not illegal at all to make a prank like that. It's been stated in history by the founder of that expression that he was wrong.

The place has the legal right to refuse service to whomever they want unless it's the arbitration of making protected classes like homosexuals, in which you can't refuse them then. However, you're not given a right to see a movie just because you bought the ticket. Buying the ticket does not guarantee you a right to the service, otherwise, people would sue for the wrong movie, which they can't. You can't sue for not getting to see Avengers 4 because something happened in the theatre preventing you from seeing it, instead you get a refund or a free movie ticket.

By arguing with mental gymnastics that you infringe on someones right to see a movie by shouting fire, be it a prank, a schizophrenic or whatever, you effectively limit speech if it at all bothers anyone. That includes talking or whispering in the theatre.

As explained, it is not illegal and not judge competent on the Constitution and legal history would rule unless they were far right or far left, or they themselves were offended and then acted in response to that biasism.

You may object that, as you mentioned earlier, people are moving out of the theater out of their own free will. This is technically true, but also beside the point: The harm is not leaving the theater, the harm is the disruption to the play and spectation of the play, as well as the deception. Shouting fire in a crowded theater is coercion, the usage of force or deception to force people do something they wouldn't normally do. Deceiving people is entirely on the speaker.

Yes, I do object to that. What you said was absurd and unheard of in American law. No, I would say it is not beside the point, I'd say it directly impacts the point in its entirety. What you're describing is emotional distress, saying that the theatre having to stop a play the people purchased tickets for is illegal, which it isn't. It might be there in the UK/EU, but not in the United States. It's on the people for not reacting like logical adults during a crisis, which is the cause for a many number of harms and incidents during a crisis. Lying to people is also not illegal. You have the right to lie. The Church does it all the time, as do political leaders. You also don't know why they shouted fire. Maybe they smelled fire/smoke or thought they saw it. Even if we choose the worst possible example of someone shouting it in the back of Avengers' movies doesn't mean it's illegal because he or she deceived people about there being a fire. Like you, putting the onus on the speakers free choice, you have to on the peoples free choice to act like chickens with their heads cut off.

So to recap, the speaker of their own free inflicts harm upon others violating their rights through coercion without any legitimate reason to do so. They are not expressing anything other than bad taste in humor and an utter disregard for other people. This is why shouting fire in a crowded theater is a violation of free speech.

You don't have a right to a product, to see a movie, just because you bought tickets. That isn't covered in the Bill of Rights at all. Nor has it really in any of out amendments added over the years. You also assume their reason.

Since you didn't really delve into why my point was wrong, I'll say my response here and my OP remains valid, sound and starkly obvious in their point. They explain why it isn't a violation of free speech.

Now, regarding the specific case where the argument of "shouting fire in a crowded theater" was applied, I have to agree: Silencing the people against the draft was a violation of their rights. That said, that's because the case didn't apply here. People were not being coerced, quite on the contrary a differing opinion was being presented to allow them to make a better choice, so both the major criteria are absent. So I am grateful for the decision, because ultimately Europe (where I live) would be a nazi or communist nesting ground today were it not for American intervention, but ultimately I have to agree it was government overreach, and not in line with the argument used for it, which was actually legitimate.

This is World War I, not II. I know you might not know the presidents, I wouldn't expect you to know them by heart, but Woodrow Wilson, a skinny man, was president during the First World War.

Regarding my own stance on free speech, while I support free speech I do not put it as my top priority. I believe that rights have a hierarchy firstly based on dependency on each other, thus putting life above freedom. You can die free but you cannot be dead and free, yet you can be alive and not free. Both rights are extremely important, but given the choice between defending someone's right to life and someone's right to freedoom of any kind, I believe the moral choice is to defend the life if both cannot be defended at once.

I'll get to this part later because I like it. I will be on a road tip from my city of Portland, OR to El Paso, TX (One day and five hours or so) so I won't be able to read any responses. Thank you.

~ Autumn McJavabean

 

[Lord Aphrodite]

Can we just end this thread before it even turns into a toxic dumpster fire? Like for real. Threads like this have a short shelf life and ultimately only lead to hate.

I vote to stop this before it blows up into something hateful.

 

[Idea]

The majority of my response to your objections boil down to the following: You completely missed what I was talking about. I was neither talking of laws (except one time when I flat out admitted that I wasn't properly informed) nor was I talking about the specific case in which the phrase "shouting fire in a crowded theater" was applied, for the most part. What I was talking about was your right to free speech, not in law but in spirit. The law is whatever the f*ck the people in charge make it, hardly something that can be debated in the first place. What we CAN do is debate the morality or potential effectiveness of certain laws and decisions based on law.

I for one have no interest in debating whether a decision was fully in line with the law, and if that is what you want to discuss then just let me know and I'll take my leave, not bother ya anymore. If what you wanted was to express a view regarding the decision's impact on a person's actual rights, and the merits of an argument based on the limitations of those rights, then I recommend tackling what I said from the angle in which it was meant, as expressed.

Regardless, I know must apologize, since the misunderstanding is less your fault and moreso mine, because I may not have been appropriately clear.


Now I will tackle the parts of your response that have anything to do with what I was actually saying:

There was no arbitration in my choice to settle with this example.

Indeed. However, you chose to tackle the example as if it was entirely representative of the general case for the case it was applied to. Which maybe it is in the law (so again, if that's the angle you are going for, feel free to ignore what I am saying), but in the spirit of free speech I believe these are entirely different situations, for the reasons I expressed in my previous post.

As I have argued above, the speaker is not to blame for the reaction of the people.

They are not fully to blame for the reaction of the people, but they are responsible for it nonetheless due to having deceived the people. As I said, the problem wasn't that the people walked out to the theater which indeed was their choice: The deceit and disruption of the play without just cause.

I dare suggest, furthermore, that the speaker's intention was to make people do those actions, and they spoke with the knowledge that those people would do it. That the people had a choice is a technicality not an argument. If someone points a gun at your head to take your money you technically CAN not give them the money. But this doesn't mean you willingly gave the person the money. Instead of a gun here, there is deception. This is, plain and simple, a case of coercion.

ut shouting fire in a crowded theatre when there is no fire? Yes, you have the right to express that statement in just. I don't think you know the history of the SCOTUS or it's ruling on free speech or the intentions of the founders when the wrote the Bill of Rights if you think different.

Or maybe I do know those things and I disagree. It is not an expression of your thoughts or ideas, therefore it falls outside of free speech.

Besides having already explained why you're wrong here, you don't actually back your claim up with how or why it isn't protected, you flat-out just say it is not. That does not fly with me, friend.

I did- I referred to free speech and what it is, with the prior paragraph havign explained why I don't believe shouting fire in a crowded theater falls into it.

What you quoted for that one, the bolded part, was perhaps the biggest indicator that I wasn't talking about the law but the spirit of free speech, since I'm 90% sure that is not how the law defines it. Regardless...

No, what? Do you not know how American laws work?

As it happens there are people in this world who are not American.

Buying the ticket does not guarantee you a right to the service, otherwise, people would sue for the wrong movie, which they can't. You can't sue for not getting to see Avengers 4 because something happened in the theatre preventing you from seeing it, instead you get a refund or a free movie ticket.

Alright, I'll take your word for it regarding disrupting the play not being against the law. I don't know enough about American laws to say either way, as mentioned.

However, one thing I do know about law is that you cannot offer a product or service, have someone who pays for it and then refuse to serve them. If you refuse to serve them, you don't take their money in the first place. You HAVE the right to the product or service. Do I have the exact quote from the law? This is common sense, so no I don't. I'll happily look for it around late January if you'd like (when I actually have time to go through those text walls just for this). If someone is unable to provide you a product or service they innitially offered because of a malfunction, then you still have the right: But the person is respecting that right by attempting to give you the product or service.

If I pay for a movie ticket, the cinema having some sort of issue means that the equipment, not the person disrespected my right to see the movie, and of course, the innanimate object isn't liable for the offer. If I reserve a seat somewhere through a website for instance, and then they do not allow me to enter, that at the every least constitutes fraud.

Regarding rights, you could argue that the speaker isn't necessarily the one that sold you the tickets. However, the speaker is still illegitimately disrupting your right to the product or service. The choice of the speaker to shout fire in this case is of extreme relevance because the equipment doesn't choose to malfunction, but the speaker chooses to shout.

By arguing with mental gymnastics that you infringe on someones right to see a movie by shouting fire, be it a prank, a schizophrenic or whatever, you effectively limit speech if it at all bothers anyone.

Ah, I'll just vent for a second how much I hate this expression. Effectively an ad hominem for anyone using a train of logical thought or any complex argument.

It does not limit free speech, because that is not free speech. Just noise that happens to lead to a certain reaction from people.

It's on the people for not reacting like logical adults during a crisis, which is the cause for a many number of harms and incidents during a crisis. Lying to people is also not illegal.

"What is that honey?"
"Oh that's a fire. Should we leave this place?"
"No, our tickets were too expensive. We are logical adults after all, so naturally entertainment comes before our own health and safety."

You also don't know why they shouted fire. Maybe they smelled fire/smoke or thought they saw it.

I didn't mention this because it is rather obviously implied, but the example assumes that you're not shouting it for any reasons that would indicate there is actually a fire.

Overall you seem to be completely misunderstanding the harm done. People harming each other on the way out is not what anyone is referring to as the problem of shouting fire in a crowded room. The problem is, as mentioned, the deceit and disruption of the play.

Since you didn't really delve into why my point was wrong, I'll say my response here and my OP remains valid, sound and starkly obvious in their point. They explain why it isn't a violation of free speech.

Yes and no. As I said, I think your point about the specific case in which the expression was used is correct. On the other hand, I think your point about the expression "shouting fire in a crowded theater" is wrong. When people are using that in argument, as far as I'm aware, they are not using it because of any legal ramifications, but because of what I myself am referring to right now: The spirit of free speech.

The law serves one of two purposes: Either to protect people's rights or to serve the agenda of those in power. If the latter, then it is not worth discussing. If the former, then it has to be discussed outside of it's own boundaries. This is why such argument carry validity even though historically the case was judged poorly: What's at stake, ultimately, isn't the law, it's the people affected by it and their rights.

This is World War I, not II. I know you might not know the presidents, I wouldn't expect you to know them by heart, but Woodrow Wilson, a skinny man, was president during the First World War.

I see. My bad there.

I'll get to this part later because I like it. I will be on a road tip from my city of Portland, OR to El Paso, TX (One day and five hours or so) so I won't be able to read any responses. Thank you.

Alrighty, have a safe trip!

Can we just end this thread before it even turns into a toxic dumpster fire? Like for real. Threads like this have a short shelf life and ultimately only lead to hate.

I vote to stop this before it blows up into something hateful.

I mean, not counting you there's a grand total of two people here, and we're just havign a civilized conversation. Sure we may disagree, but we also both have expressed a shared belief in free speech and people's right to express their opinions and confront them with those of others. Of course, it may still turn sour, but by the looks of it, I believe it will just end in peaceful agreement to disagreement. At least as far as myself and Autumn McJavabean go.

 

[Lord Aphrodite]

I mean, not counting you there's a grand total of two people here, and we're just havign a civilized conversation. Sure we may disagree, but we also both have expressed a shared belief in free speech and people's right to express their opinions and confront them with those of others. Of course, it may still turn sour, but by the looks of it, I believe it will just end in peaceful agreement to disagreement. At least as far as myself and Autumn McJavabean go.

That's fair. I'm just sayin', these threads turn sour more often than they turn sweet, in my experience. But that's my two cents, I tap out. Don't y'all @ me anymore.

 

[Idea]

That's fair. I'm just sayin', these threads turn sour more often than they turn sweet, in my experience. But that's my two cents, I tap out. Don't y'all @ me anymore.

Very well. Thanks for trying to help

 

[Axel The Englishman]

Kicks open the door

Let the experts handle this one, kids.