Oliver Wendell Holmes Jr. was a
simple-minded fool who had no more business adjudicating on our
nation's affairs than the blonde mannequins that populate our morning
news programs. The only opinion of Holmes that anyone seems to be
able to quote (done so with no knowledge of whom to attribute the
quote to) is his noxious idea that the first amendment somehow does
not protect a person from “shouting fire falsely in a crowded
theater.” Ignoring for the moment that no one remembers to include
the word “falsely” in their recitation, I intend to argue that
all forms of speech are to be protected and allowed, and particularly
those which are found offensive, against popular opinion, or
otherwise uncomfortable for people to be exposed to.
Holmes' oft-cited ramblings about
behavioral necessities while one is at the theater were, in fact, an
attempt to backpedal on a previous opinion that leaflet distributors
arguing against the conscription of men to fight as a violation of
the thirteenth amendment's prohibition of involuntary servitude. This
primer on constitutional law was deemed by Holmes to be a “clear
and present danger” to the country in wartime because of the
possibility of “substantive evils that Congress has a right to
prevent.” The consequence of these leaflets would be a mindless
trampling panic akin to people rushing out of Holmes' “crowded
theater.” The education of our populace was seen as being in
conflict with the military's ability to increase enlistment, and the
effort to educate was punished with conviction under outmoded
espionage laws in the name of national security.
The attempt to mitigate his colossally
thoughtless judgment was set to paper in November of 1919, eight
months after the Schenck trial's conclusion, in the United States'
prosecution of Jacob Abrams and others for distributing leaflets
written in Yiddish protesting American involvement in Russia's
October Revolution through our obstruction of the Bolsheviks and
supply of weapons to the Republic. It is said that in the intervening
time friends of Holmes, including the spectacularly-named Learned
Hand, worked through argument to persuade Holmes to a less
reactionary position on the rights of free speech. Given how
shortsighted and single-minded Holmes was, complete with a belief
that the law should be based entirely in experience instead of logic,
his friends were acting less as debate opponents and more as
cattlemen: trying desperately to keep a brain-damaged runaway cow
from trampling over any more people than it absolutely had to.
In the Abrams judgment, Holmes wrote
that the defendants didn't have the means necessary to actually carry
out their intended goals, and therefore did not fit under the C&PD
umbrella. Their goals were to change public opinion about American
engagement in foreign civil wars, which seems only slightly different
to me than changing public opinion on involuntary conscription.
Holmes argues that “the best test of truth is the power of the
thought to get itself accepted in the competition of the market,”
which flies in the face of his repeated decisions to crush free
expression wherever it conflicted with national interest. Had he been
at all consistent in his judgments, or treated the poor and
insignificant as Americans with a voice instead of as the great
unwashed, perhaps his judicial mark would not be so shallow and
easily dismissed. As it is, however, using the opinions of Oliver
Wendell Holmes Jr. as any kind of litmus test for modern judges – sitting on the Supreme Court or otherwise – is
equivalent to judging your physical well-being against the healthiest
leper.
All kinds of speech are worth the fight
it might take to hear them, but none more so than the opinions which
it is easy to identify as hateful and/or unpopular. Additionally,
anyone who tries to suppress or eliminate the free expression of
ideas should immediately be considered an enemy, if for no other
reason than they think they know better than you do what is
acceptable for you to hear or read. It is a sign of mental
deficiency, if not outright disease, to be invested so fully in one
perspective but so unstable and without confidence in it that any
conflicting view which presents itself is a mortal threat to all one
holds dear; it is equally a sign of a diseased mind when any
individual feels it is appropriate for one group of people to control
the expression of any other group. Neo-Nazi marches don't seem to be
popular anywhere, but I take pride in the fact that we, as a culture,
not only allow them to march but provide them with police protection
to defend them against people like me who might seek to physically
harm them.
This speaks to the aspect of free speech
that I find the most straightforward, but also the trickiest. All
speech should be allowed under all circumstances, but in order to
exercise this freedom we need to re-examine our attitudes about
personal responsibility and return to giving it the high regard it
deserves. To be clear: say anything you want at any time, but be
prepared for the consequences. Saying something particularly forward
at a nightclub and getting a drink thrown in your face is no
different than expressing your world view and suffering much more
serious consequences such as loss of employment or social
ostracization. The gallons of drinks I wore throughout my second
decade never once suppressed my freedom of speech, they were a direct
consequence of my exercising that freedom.
I smelled like Carmen Miranda's hat, with subtle notes of shame
To return to the childish and arrogant
statement I began with, it is proper to draw a distinction between
statements like holocaust denial or religious belief and the
statement in question, which is – we are to imagine – standing up
in a theater full of people and shouting fire without cause in an
effort to spur evacuation. The tacit social contracts we operate
under on a daily basis do not exclude saying offensive or ignorant
things, but we have a wholly different and innate reaction when
someone's utterance passes the realm of conversation and normal
everyday speech into the territory of alarm-raising.
As social animals, it is of great
benefit to us when people who are aware of something detrimental that
is unknown to us extend a warning so that we may avoid it. This
ranges from very minor things like flashing headlights to warn
oncoming traffic of an obstruction they cannot see yet to very major
things like alerting large groups of people that the building they
are in is currently ablaze. In that worst-case scenario, hearing the
shout of fire and seeing the mass of people heading in the opposite
direction tells me everything I need to know about what to do. We
rely on this stimulus response heavily, and react to it almost
immediately and without hesitation, which is why raising an alarm
falsely is such an easy thing to despise.
"Has shit gone pear-shaped? Then don't be a dick." - Famous British Guy
From childhood, we are taught that lying
about crisis ruins your credibility, and when something bad
inevitably happens your cries for help will be ignored and a wolf
will eat your face. We understand, without having it explained, that
we depend on one another for our safety and survival; exploitation of
that dependence is therefore a threat to safety and survival. This is
why invoking the “crowded theater” still has such a visceral
response for us, but it is a misplaced and inaccurate argument
because raising an alarm is not the same thing as expression of an
idea. It would be inexcusable to falsely sound an air raid siren, but
no one can raise a serious argument about Orson Welles “War of the
Worlds” broadcast, no matter how many panicked idiots decided to
lose their minds without listening past the ten minute mark.
"I'm a symbolic representation of an imagined external threat. Rarr!"
There will never be a deficit of people
with offensive opinions who make them public, and it follows that we
won't run out of people who are duly offended and publicly respond.
This is the best possible thing for our culture, and one of the only
things I expect we'll still be trying to protect a century from now.
I argue that this defense is vital not strictly for me, so that I can
read and watch and listen to whatever I may choose, but so that other
people will say things that I had never thought of or things I
disagree with, and so others still may respond. This idea seems
astonishingly simple and obvious to me, but someone regarded as an
exemplary Supreme Court Justice couldn't wrap his ridiculous mustache
around it.
Seriously, fuck this guy.
