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Answers to 12 Bad Anti-Free Speech Arguments: Featuring That XKCD Cartoon Everyone Likes to Quote!
25/05/2021 Greg Lukianoff
I don’t know how common this concept is, but the “words as weapons to replace physical weapons” idea was new to me.
While the United States Constitution limits only governmental behaviour on its face, its application sometimes requires the government to protect you from being censored by other citizens. For example, the government has a duty to protect you from being attacked by a hostile mob that doesn’t like your ideas or having your public speech disrupted by a heckler’s veto.
I did not know that.
The real surprise to me was in this point, copied in full:
Assertion: But you can’t shout fire! in a crowded theatre.
Answer: Anyone who says “you can’t shout fire! in a crowded theatre” is showing that they don’t know much about the principles of free speech, or free speech law—or history.
This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes and point out that it is, in fact, as Alan Dershowitz puts it, “a caricature of logical argumentation.” Ken White has already penned a brilliant and thorough takedown of this misconception. Please read it before proclaiming that your least favourite language is analogous to shouting fire in a crowded theatre.
The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.
Oh, and notice that the court’s objection was only to “falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.
(I tried to copy the emphasis, but haven’t included the links - check the piece for those.)
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