The first amendment and politics
“The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish hate speech,” reads a rundown on hate speech from the Foundation for Individual Rights and Expression, a First Amendment group. “The First Amendment recognizes that the government cannot regulate hate speech without inevitably silencing the dissent and dialogue that democracy requires. Instead, we as citizens possess the power to most effectively answer hateful speech—whether through debate, protest, questioning, laughter, silence, or simply walking away.”
But that wasn’t Walz’s only error. A few seconds later, he said “You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test.” Again, this is incorrect. It’s a common misconception that shouting “fire” in a crowded theatre isn’t protected by the First Amendment—a myth that originates from a hypothetical used in Justice Oliver Wendell Holmes’ 1919 Supreme Court opinion in Schenk v. United States.
Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Not only was this a purely hypothetical example used to explain Holmes’ opinion, but the ruling itself was largely overturned 50 years later in Brandenburg v. Ohio.
“The real problem with the ‘fire in a crowded theater’ discourse is that it too often is used as a placeholder justification for regulating any speech that someone believes is harmful or objectionable,” Naval Academy professor Jeff Kosseff wrote for Reason last year. “In reality, the Supreme Court has defined narrow categories of speech that are exempt from First Amendment protections and set an extraordinarily high bar for imposing liability for other types of speech.”
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Congress 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.
