I have plenty of love for it, and I’ve been studying it formally. Unlike you, I know that when it was ratified, it covered only speech. It wasn’t until later that it was expanded to cover expressive conduct.

Yeah, I thought we’d had this conversation before…

You’ve been studying speech issues formally, I get that. I’ve been interested in speech issues for over twenty years – since the anti-pornography debates in the mid-80’s, if not earlier, and I’ve been reading free speech case law all that time. I have a personal stake in free speech issues, as I produce art that is unpopular, as do other artists that I like.

So, I know what I’m talking about, and you’re wrong, as you were in our previous discussion. The First Amendment was created specifically to disallow the government censorship of any viewpoint, no matter how it was expressed. There was no distinction made between speech and “expressive conduct,” then or now. It’s true that the First Amendment has been applied in situations that the Founders didn’t consider; but they did not consider that the government would ever attempt to suppress speech in those situations, either. And expression was seen by the Founders as a natural (inalienable) right; something that no just government had a right to interfere with.

Oliver Wendell Holmes was explicitly disavowing the “natural rights” view of free speech when he decided Schenck. This is not a surprise, as he didn’t believe in natural rights at all:

There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk. It seems to me that this demand is at the bottom of the philosopher’s effort to prove that truth is absolute and of the jurist’s search for criteria of universal validity which he collects under the head of natural law. […]

I used to say when I was young, that truth was the majority vote of that nation that could lick all others. Certainly we may expect that the received opinion about the present war will depend a good deal upon which side wins (I hope with all my soul it will be mine), and I think that the statement was correct insofar as it implied that our test of truth is a reference to either a present or an imagined future majority in favor of our view. If … the truth may be defined as the system of my (intellectual) limitations, what gives it objectivity is the fact that I find my fellow man to a greater or less extent (never wholly) subject to the same Can’t Helps. If I think that I am sitting at a table I find that the other persons present agree with me; so if I say that the sum of the angles of a triangle is equal to two right angles. If I am in a minority of one they send for a doctor or lock me up; and I am so far able to transcend the to me convincing testimony of my sense or my reason as to recognize that if I am alone probably something is wrong with my works. […]

The jurists who believe in natural law seem to me to be in that na?ve state of mind that accepts what has been familiar and accepted by all men everywhere.

If the middle paragraph reminds you of the “2 + 2 = 5” speech from Orwell’s 1984, you’re not alone. Holmes did not believe in human rights at all; he believed that people’s “rights” emanated from ideas that survived as the “fittest” to society. Note that Holmes also sanctioned forced sterilization, in Buck v. Bell:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

It may seem like a cheap shot to bring it up, but it is an example of Holmes’ belief that the “public welfare” should trump human rights. And it is also an example of the consequences of this belief.

Thus Holmes, and the court in Schenck, contracted First Amendment protections; and, in fact, they had already been shrinking for quite some time before that (especially, and unsurprisingly, during the Civil War). It wasn’t until the court returned to an “inalienable right” view of free speech that First Amendment jurisprudence started returning to what the Founders originally intended. And today, the Schenck case (along with Debs and Frohwerk) are considered shameful, part of the dark ages in the history of free speech, and fortunately long-overridden.

When people use the “fire in a crowded theater” quote, they are essentially arguing for a return to these dark ages, whether they are aware of it or not (and usually they are not).

And unlike you, I don’t go around calling everything “censorship,” expanding the meaning so much that it covers just about everything.

My definition of “censorship” is pretty much the same as the law’s: the government suppression of expression.

I will admit that I have more of an absolutist view of the First Amendment than some other people – that any government regulation of speech is wrong, and that such regulations must protect human rights that are equally as fundamental. But this is a “bias” that I’m not even remotely ashamed of, and I think everyone should have it.

Some censorship may necessary, and may not run afoul of the First Amendment. But that doesn’t mean it’s not censorship, just that it’s not unconstitutional censorship.

And that is – without question – what the people I quoted are arguing. They are arguing for censorhip, by arguing that it’s not unconstitutional censorship. Which is pretty much the same argument that all people make when they want to censor something. And they usually quote Holmes when they do it.

I’m willing to bet you’ve made such an argument yourself…