Joe Biden Yells A Dumb Anti-Free Speech Trope In An Uncrowded Congress

from the don't-support-censorship-joe dept

Joe Biden has never been a particularly big free speech supporter. For years, as a Senator, he consistently sided with the entertainment industry in their never-ending quest to have the government help attack free speech on the internet via aggressive and oppressive copyright laws. Throughout his campaign he railed against protected speech online that he disliked. And last night, during his first full address to Congress, he trotted out the very dangerous “fire in a crowded theater” trope:

He did it in a very dumb way too. In talking about his push for gun control, he pushed back against the idea that things like background checks and certain limitations on firearms would violate the 2nd Amendment… using the trope about the 1st Amendment:

This shouldn’t be a red or blue issue. And no amendment to the Constitution is absolute. You can’t yell fire in a crowded theater.

This is unfortunately not the first time Biden has used that line in his push for gun control.

For a decade now, we’ve been explaining why this is not a good thing to say, but apparently people need a big refresher. So, here we go.

First off, the “shouting fire” line was first said by Supreme Court Justice Oliver Wendell Holmes in Schenk v. United States. It was not a precedential statement, but rather what’s known as dicta, basically a judicial aside. Schenk was not about fires in theaters. It was about jailing someone who was morally opposed to war for handing out anti-draft brochures during World War I. If anything the statement should be seen as an example of why and how we need to better protect free speech rights, because when we don’t, and we let people aimlessly say things like “you can’t falsely shout fire in a crowded theater” it leads to jailing people for protesting war — something today we recognize as quintessential protected speech. If people knew the actual history behind the statement, it’s unlikely they’d use it.

It never had any precedential value as dicta, but even if it did, the Schenk case is no longer good law. In fact, just months later, Oliver Wendell Holmes basically changed his mind. A few years back, Thomas Healy wrote an entire book about how a bunch of his free speech supporting friends more or less convinced him that he was very, very wrong in Schenk (and a couple of other similar cases), so in the very next term, Holmes suddenly started crafting our modern concepts of 1st Amendment law, in which most speech is absolutely protected. Initially in a set of dissenting opinions (in which his colleagues on the bench continued with the original line Holmes created), Holmes realized that he was totally wrong in Schenk and began saying things like:

I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Decades later, the ruling in Brandenburg v. Ohio effectively overruled Schenk, and began to establish the extremely limited and narrowly defined exceptions to the 1st Amendment.

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. . . . A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Since then a very small number of exceptions have been determined by the courts, but they are very, very, limited. And while someone could craft a scenario in which falsely yelling fire in a crowded theater could potentially fall into one of those buckets, it is extremely unlikely and would be extremely context dependent. In general, saying “you can’t yell fire in a crowded theater” is false.

Almost universally, any time someone uses that line, they are endorsing unconstitutional suppression of speech, and trying to pretend it might be constitutional because “not all speech is constitutional.” As Ken White rightly notes, that’s what makes the use of this phrase so pernicious:

It’s an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it’s null-content, because all it says is some speech can be banned ? which… is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

[….]

The observation “not all speech is protected” adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

In other words, the main function of using the “fire in a crowded theater” line, including in Biden’s speech last night, is to say “I’m not going to explain to you why what I want to do is Constitutional, because I can just say the Constitution doesn’t limit everything that I’d want to do.” It’s not only a meaningless statement in that it avoids the important heavy lifting of explaining why what you want to do isn’t unconstitutional, but it brushes that very issue under the rug and says “let’s not explore the issue of Constitutionality, because we can ignore it.”

And doing that while at the very same time effectively defending the jailing of someone for protesting war is shameful and certainly un-Presidential.

For what it’s worth, it appears that the “fire in a crowded theater” line was a stupid improvisation from Biden. It did not appear in the transcript the White House released prior to the speech:

One hopes that someone in the administration who understands the history and problems with that line will tell him to stop using it because it’s extremely problematic, not just in the context of the 2nd Amendment, but very much so in the context of the 1st.

Anyway… if you care about the 1st Amendment and have feelings about this line, have we got a t-shirt (and other gear) for you:

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Comments on “Joe Biden Yells A Dumb Anti-Free Speech Trope In An Uncrowded Congress”

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60 Comments
Baron von Robber says:

Re: Re:

Oh yea?! Well he’ll be as bad as the last guy just as soon as he…

Hires his kids to help him grift us.
Tweets 50x a day from the bathroom.
Lies 100x a day.
Quid pro quo’s other countries to find dirt on his opponents.
Obstructs justice over and over.
Drops the world’s opinion of us.
Never breaks 50% approval…oh wait, it’s too late on that one, nevermind.
Goes golfing every weekend at his own golf courses.
Calls white supremacists fine people.
Pushes elections officials to steal elections for him.
Starts an insurrection at the Capitol.

Just as soon as he does things…he’ll be just as bad…..yea, it’s not going to happen is it?

David says:

Eh, Biden was what you'd have expected...

Tim Scott was the actual clincher. When he talks of going across the aisle and moving forward together and trying to find common ground, that’s a lot more believable than when obstructionist McConnell does the same (and Cruz, Hawley and their ilk are not interested in common ground anyway).

So the Republicans put somebody up to the plate who actually was quite far from the empty theatrics and histrionics of where the Trumpist part of the party is going.

This was a voice that Biden cannot afford to ignore. So good strategic choice to put him there. But who made that choice? And what does it mean for the Republicans and how they are going to position themselves in the next years?

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Stephen T. Stone (profile) says:

Re:

the Republicans put somebody up to the plate who actually was quite far from the empty theatrics and histrionics of where the Trumpist part of the party is going.

They also put up the only Black Republican in the Senate to deliver the rebuttal. If you think that was done for any reason other than a cynical appeal to “diversity”, of course you’d believe that Republicans finally plan to do something other than “govern” from a position of “own the libs at all costs”.

This is a group of people who couldn’t even be bothered to applaud when Biden talked about a drop in child poverty rates. Do you really believe they’ll do anything other than demand complete concession to Republican/conservative ideology in exchange for passing legislation?

David says:

Re: Re: Re:

They also put up the only Black Republican in the Senate to deliver the rebuttal. If you think that was done for any reason other than a cynical appeal to “diversity”,

Sure. Of course he is their alibi Black. But cynical or not, they chose to pick an appeal to "diversity" as their attack vector. And Tim Scott did not let the opportunity, however they decided to give it to him and nobody else, go waste. I don’t know whether he was pushed to the front because nobody wanted to be the fall guy.

But he ended up way more effective than what Cruz/Hawley etc could have achieved given that job, and some may think twice about pushing him to the front again.

I may be imagining things but I found that side part intriguing.

David says:

Re: Re: Re: Re:

Well, honeymoon’s over… Headline cut&paste from Foxnews:

Sen. Tim Scott predicts ‘coming backlash to this liberal oppression’ on ‘Hannity’

Sen. Tim Scott, R-S.C., has received incessant hatred and racism from the left following his rebuttal to President Biden’s address to Congress Wednesday, but the senator told "Hannity" on Thursday that liberals should watch out for a Republican rebound.

"Liberal oppression". That term alone should tell you enough. I read that Scott is a good behind-the-scenes negotiator particularly regarding things like the bipartisan policing talks.

But if he doesn’t manage to avoid letting himself get painted in a corner with the rest by Foxnews and their ilk, there is no future for him either outside of the authority-adoring and compromise-sabotaging Trumpist movement.

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That One Guy (profile) says:

Re: Re: Re:2 'Keep that up and I'll do what I've alwasy done!'

Oh noes, the republicans might ‘rebound’ and lash out and be something other than civil and polite to their political opponents, how ever shall the democrats deal with this completely new and unprecedented behavior from the republicans?

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David says:

Re: Re: Re:3 'Keep that up and I'll do what I've alwasy done!'

I think "rebound" was meant as "get the upper hand again", like in the favor of voters. I mean, I get why McConnell chose not to deliver that absurdly hypocritical message himself: it looks better from almost anybody else, and if he had delivered it, it would have made him look not just powerless but pathetic.

The problem is that the message "we’ll play nice in future if we get the upper hand if you play nice now" rings totally hollow as long as McConnell stays at the helm since his track record of giving a rat’s ass about his promises of yesteryear speaks for itself.

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That One Guy (profile) says:

Re: Re: Re:4 'Oh look we have power again, now about that pinky-promise...'

Yeah, if that’s what they meant then they are banking on really stupid people with really short memories, because on top of their demonstrable hypocrisy in ignoring their own arguments the second it’s beneficial to do so ‘stick it to the libs’ might as well have been the GOP motto for a good while now, so the idea that they’d ever ‘play nice’ while in a position of power is something that would require either stunning levels of denial or ignorance on the part of those they are trying to convince.

Scary Devil Monastery (profile) says:

Re: Re: Re:5 'Oh look we have power again, now about that pinky-promise..

"…if that’s what they meant then they are banking on really stupid people with really short memories…"

Like the normal person who votes republican these days?

I used to believe it was just endemic party corruption. Strongman tactics and demagoguery finally tipping the scales of power their way in the GOP.

And then came the shit-show farce they put up around the election and we all saw the full extent of the crazy. The GOP is nothing more than a shameless cadre of grifters corralling a large herd of clueless morons to the shearing. The real issue is that one in three american voters isn’t just a fscking horrible person but also an idiot.

And yea, they can bank on those morons to keep voting their way no matter what they do.

That One Guy (profile) says:

Re: Re: Re:6 'Oh look we have power again, now about that pinky-promi

At this point I’d probably write off anyone still identifying as republican from a list of ‘people who can be trusted not to be either blindingly stupid and/or blatantly corrupt’, sure, but in this case I was referring to the democrats they’d be trying to convince with their ‘be nice to us now and we’ll be nice to you when we have power’ argument, because said democrats would have to be insanely ignorant and/or gullible to fall for that.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"They also put up the only Black Republican in the Senate to deliver the rebuttal."

To an increasing degree the presence of black people in the republican party reminds me of that old joke about a journalist who, after interviewing the blind-since-birth old KKK leader screaming about racial purity for an hours time with much bile and venom, quietly whispered to one of the standardbearers "Doesn’t he know…?" only to be answered "We don’t have the heart to tell him he’s black…".

It’s been said that the true measure of equality won’t come when a genius member of a minority demographic is recognized for their genius, but when an utter moron of that minority manages to achieve the same success as a moron from the majority. In this, ironically, the GOP is ahead of the democrats…

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That One Guy (profile) says:

No, bad Biden, bad!

If anything that it was an unscripted line is more concerning as that suggests that it’s something that he actually thinks is a good argument rather than one that’s been carefully planned out and is being read.

Hopefully it’ll be treated as a throwaway(even better if someone can explain to him why it’s a bad line) but it’s certainly something worth keeping an eye on.

Anonymous Coward says:

Re: Re:

There are many, many things you can’t say (or publish in writing) without significant consequence. You can’t tell everyone "my employer is highly successful because …" without risking a trade secrets lawsuit. You can’t go on TV (or radio, or a youTube channel) and say "The number one state secret that I know is …" and then reveal classified information – especially if you have security clearance. You can’t say to your friends "Let’s get together at 9:00 Tomorrow morning and rob the back on the corner of main and tenth, because I know they silent alarm isn’t working", especially if they do so, with or without you. That last one would risk prosecution for, at the least, accessory before the fact. You can’t say "ABC corp is about to be sued for patents they infringed" if it isn’t true without risking an expensive defamation lawsuit. It’s easy to concoct a long list of things you can’t say without consequence, even in the US. Most of them involve obvious wrong-doing. Copyright introduces a plethora of other things that are not obvious wrong that could nonetheless cost you dearly.

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William Null says:

I need to congratulate you on this article. Usually you do pretty bad job on stuff like this (ever since 2016, I wonder why?), but today you correctlypointed out how anti-freespeech Biden is. You usually do a good job on stuff related to IP law abuse or telecom monopolies, shame that you let your emotions get in the way of logic when it comes to 230 reform.

David says:

Re: Re: Re:

Emotions usually get in the way of even considering stabbing your own mother to death too.

Uh, emotions tend to be involved either way when stabbing your own mother to death. I rather doubt that such a deed would be done entirely out of rational dispassionate considerations.

Like, "oh this assassination contract actually is for my mother, hope she doesn’t mind that it’s me. After all, it’s nothing personal".

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btr1701 (profile) says:

This shouldn’t be a red or blue issue. And no amendment to the Constitution is absolute."

So you mean there is the possible that someone could own another human as a slave? I mean, if the 13th Amendment isn’t absolute and there are exceptions to every amendment…

And if the 19th Amendment isn’t absolute, that would mean it’s possible that the government could deny people the right to vote based on their sex/gender?

Wow, thank goodness for Biden. There’s a whole new aspect to constitutional law that I never knew existed before!

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Stephen T. Stone (profile) says:

Re:

there is the possib[ility] that someone could own another human as a slave?

Possible? Slavery is still a thing in the United States. The government owns lots of slaves — only these days they’re referred to as “prisoners” because slavery is only legal as a punishment for criminals.

if the 19th Amendment isn’t absolute, that would mean it’s possible that the government could deny people the right to vote based on their sex/gender?

Plenty of conservative white Christians would love to make that happen, of that I’m sure.

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Scary Devil Monastery (profile) says:

Re: Re:

"So you mean there is the possible that someone could own another human as a slave?"

In practice? Then yes, the US still has slavery.
I guess you could call it indentured serfdom, because for any practical purpose the guy doing twenty years for smoking weed in public and who is now a hundred k in the hole to the correctional facility for toiletries will be spending the rest of his days little different than an 18th-century cotton picker in the south.

But yes, with sufficient majority the constitution can be rewritten. This process is called "amending" it and has been performed quite a few times now.

Seriously, what is up with you alt-right wingnuts with your love for a document which even a european like me has apparently read while you yourselves haven’t?

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