GREG LUKIANOFF: How Tim Walz got free speech very wrong at the Vice Presidential Debate.
When you’ve been defending free speech as long as I have, you’ve heard every bad argument against it about a billion times. And while FIRE and I have responded to these anti-free speech arguments repeatedly over the years, some of them are tougher to kill than a tardigrade. No matter how many times they are rebutted, they just keep coming back up.
In the span of about 30 seconds during last night’s Vice Presidential Debate, Minnesota governor and Democratic candidate Tim Walz managed to bring up the top three:
- There is no ‘hate speech’ exception to the First Amendment.
- Misinformation and disinformation are protected speech — and should stay that way.
- Yes, you can yell ‘Fire’ in a crowded theater.
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Walz’s last comment on this during the debate is one of the most popular and enduring defenses of limiting expression, and one of the most frustrating for those of us who know anything about how free speech and the First Amendment actually work: “You can’t yell ‘Fire’ in a crowded theater.”
Yes, Governor Walz, you actually can — as many people, including Christopher Hitchens, have literally demonstrated.
What you can’t do is “falsely shout fire in a theatre and cause a panic.” The emphasis is mine, but the quote comes from an analogy that Supreme Court Justice Oliver Wendell Holmes made in the 1919 case Schenck v. United States.
The most irritating thing about this quote is that the parts I emphasized above are often omitted, but they’re the most important because they illustrate the context of the speech in question. The idea is not that the word “fire” is forbidden in a crowded theater, but rather that attempting to incite behavior that will cause people harm (like, you know, making them think there’s a fire and causing them to freak out and stampede) is not protected speech, and actually falls under the very clearly-defined exception to First Amendment called “Incitement to imminent lawless action.”
Still, there’s even more context that makes this particular cliché irritating to encounter. Holmes’ Supreme Court opinion was one that upheld the imprisonment of two people who argued that military conscription was wrong. The Court justified the ban with Holmes’ dubious analogy, which was meant to tie back to the 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 in 1925, and rightly seeing that this line of thinking was being used to justify clearly unconstitutional censorship, outright overruled it in 1969. And yet, the cliché endures, even in the mouths and minds of a candidate for the nation’s second-highest office in 2024.
And then there’s the dog that didn’t bark: Tim Walz Endorsed Censorship In Front Of Millions Of Americans And No One Cares.
Why would Democratic Party operatives with bylines object to something they completely agree with?