Oliver Wendell Holmes Jr., was 90 years old when he finally retired from the U.S. Supreme Court in 1932 — the only Supreme Court justice to reach that age on the bench until John Paul Stevens in 2010.
In his 30 years on the bench, Justice Holmes would ink his legacy on a number of legal interpretations that shaped the 20th century. The biggest? The “clear and present danger” test, ultimately championed by the court for decades that declared certain types of speech as not protected by the First Amendment if such speech could be deemed to damage the public welfare.
One of the earliest cases affected by “clear and present danger” was a 1919 case challenging the conviction of Charles Schenck, a member of Philadelphia’s Socialist Party, who mailed out thousands of flyers to young men encouraging them to resist the military draft, claiming it was a violation of the 13th Amendment which prohibited involuntary servitude.
Schenck and another Socialist Party member, Elizabeth Baer, were convicted of violating the Espionage Act that prohibited any interference in the U.S. military, including its recruitment efforts.
Schenck’s lawyers argued his flyers were an expression of free speech. The Supreme Court, however, disagreed — unanimously. In writing the opinion supporting the majority, Justice Holmes acknowledges that “in many places and in ordinary times” the claims made my Schenck and Baer “would have been within their constitutional rights.”
But these were not “ordinary times.” The country was in the midst of World War I, and soldiers were needed in the European trenches. And because of that, “the character of every act depends upon the circumstances in which it is done,” Holmes said.
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”
No, Justice Holmes didn’t tap into his “Book of Old Cliches” for that line. He’s the one credited for originating it. And it would serve to headline a policy that would stifle anti-war speech all the way through Vietnam. It was there, in 1969, the court ruled the government can’t target speech unless it’s “directed to inciting or producing imminent lawless action,” instead of the previous approach of speech that simply advocates violence.
So why such a long-winded history lesson on free speech? Because this is a lesson we can’t lose sight of, especially when phrases like “you can’t shout fire in a crowded theater” are more popular than ever when it comes to First Amendment debate.
And it begs the question: Where is the line where protected speech ends? Should such a line exist?
The First Amendment is intended to protect all of us from punishment or retaliation of any sort over our free speech — from the government. But it doesn’t require you or I to grant anyone we’re talking to those same freedoms. In fact, freedom of speech is never the same as freedom from rebuttal or even consequence. And there could indeed be some speech that ultimately results in that from people or entities who are not government related.
That’s highlighted even more today through social media platforms. In what was once speech limited to how many barrels of ink one owned, it seems just about anyone can have their words go “viral” and become part of the public discussion.
There are many positive aspects of that — especially since it opens conversations that information “gatekeepers” would rather remain closed. But it also means that even everyday people like you, us, and our neighbors are under greater scrutiny for the things that we say.
Last year, Ethical Culture Fieldston School took some heat after a speaker from Columbia Law School, A. Kayum Ahmed, who reportedly said the victims of the Holocaust and violence — who have since established control of Israel — “have become perpetrators of violence against Palestinians.”
This is Ahmed’s opinion, and whether we agree with it or not, he has the right to express that opinion. Whether doing so in front of teenagers at a school event was the proper venue for that is up for debate. But even dissenting opinions are worthy of exploration and discussion, as part of the free exchange of ideas that our Founding Fathers had hoped to perpetrate in the establishment of this country.
Some media outlets not so balanced in their political leanings had pressured Fieldston school officials to do something about it, and that something seems to have come in the firing of history teacher J.B. Brager.
Brager took to Twitter not only to speak out against Israel’s reported treatment of Palestinians, but also over how Fieldston handled the Ahmed statement, saying that “when institutions of ‘learning’ bow to political pressure to disavow historical reality, what can educators do within that institution?”
One might argue that’s a discussion best had internally with the school’s administration, even Fieldston’s board of directors. Brager, however, chose to air it publicly on social media. And it’s because of that — at least according to those trying to get Brager reinstated — this teacher lost their job. (Brager uses the "they/them" pronouns.)
It’s unfortunate what happened to Brager. It’s unfortunate that a member of Fieldston’s faculty didn’t feel they could start a conversation with the school’s administration on how it would deal with hot-button discussions like those of Israel and Palestinians.
But then again, freedom of speech is not equivalent to the freedom of rebuttal — or consequence. Many have been martyred (both figuratively and literally) for expressing unpopular opinions. Look at those being arrested in rallies and protests across the country.
While the government might dance around free speech in these arrests (handcuffing protesters for other issues unrelated to speech), the fact is that we are never free of consequence for speaking how we feel.
But we must stop punishing each other for the opinions we hold, and just listen. Even if we don’t change our minds, every single person has a right to express their opinion, whether we agree with it or not.
There are limits to free speech, even when it comes to the First Amendment. But those limits should be as narrow as possible, because with every crack we create in the foundation of free speech, that’s one crack closer to shatter.