Tuesday’s vice presidential debate between Gov. Tim Walz (D-MN) and Sen. J.D. Vance (R-OH) was a lively affair. And while there were more lows than highs, one exchange in particular stood out as a telling moment: when Walz attempted to defend previous comments he’s made claiming “there’s no guarantee to free speech on misinformation or hate speech.”
“You can’t yell ‘fire’ in a crowded theater,” Walz told Vance. “That’s the test. That’s the Supreme Court test.”
First, Walz is wrong that the First Amendment doesn’t protect “hate speech.” As recently as 2017, in Matal v. Tam, the Supreme Court unanimously upheld a lower court that had ruled unconstitutional a law that sought to prohibit “disparaging” speech, particularly in regard to race, gender, or religion.
“Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful,” the high court ruled, “but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”
While Walz was clearly wrong, his attempt to defend his remarks by invoking the “fire in a crowded theater” argument is even more embarrassing.
More than a decade ago, a contributor to the Atlantic begged opponents of free speech to stop trotting out the “crowded theater” metaphor — and for good reason. The argument is a non sequitur that fails logically, historically, and constitutionally.
When Walz speaks of yelling “Fire!” as a Supreme Court “test,” he’s referring to Schenck v. United States, a 1919 case in which Justice Oliver Wendell Holmes Jr. stated that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
The problem is Holmes was talking in completely hypothetical terms about a case that had nothing to do with theaters. The actual case involved Charles T. Schenck, a leader of the U.S. Socialist Party, who was arrested and sentenced to 10 years in prison not for yelling “Fire!” in a crowded theater but for distributing 15,000 leaflets urging people to oppose the draft.
In other words, as Trevor Timm noted in the Atlantic, Holmes was offering what attorneys refer to as a dictum, “a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.”
There is no crowded theater “test,” as Walz claimed, and there never was. Holmes was simply trying to make a point — that there must be some line somewhere where free speech is not protected, particularly if it’s speech that recklessly or intentionally leads to direct physical harm of innocent people.
The other problem is that even if there were a “fire in a crowded theater” test in Schenck, which there isn’t, it wouldn’t matter. Schenck was overturned more than a half-century ago in Brandenburg v. Ohio, a case that made it more difficult to prosecute people for speech the government deemed inflammatory.
To recap, the Supreme Court case Walz referenced didn’t have a “yelling-fire-in-a-crowded theater” test, didn’t involve a defendant accused of yelling “Fire!” in a crowded theater, and was overturned 55 years ago.
This is why the American Civil Liberties Union explained more than a decade ago that the crowded theater metaphor “is worse than useless in defining the boundaries of constitutional speech.”
“When used metaphorically, it can be deployed against any unpopular speech,” noted Gabe Rottman, legislative counsel for the ACLU.
This is precisely why Walz and others continue to use the “crowded theater.” It’s a lazy but effective rhetorical trick used by supporters of the censorship state: a kind of logical fallacy designed to convince people that because there are theoretical limits to free speech, their censorious proposals are justified and constitutional.
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Walz almost certainly knows how flimsy his “crowded theater” rhetoric really is, but he’s likely counting on people either not to know or not to care. But people should know and we should care.
Historically, the most violent and authoritarian regimes in history cemented power by crushing free speech. This is why people should heed Benjamin Franklin’s 300-year-old warning: “Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
Jon Miltimore is senior editor at the American Institute for Economic Research. Follow him on Substack.