Tim Walz ‘Crowded Theater’ Argument Is Misinformation
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.
Tuesday’s vice presidential debate between Minnesota Gov. Tim Walz and Ohio Sen. J.D. Vance was a lively affair. And while there were more lows than highs, one exchange in particular stood out to me as a telling moment, which came 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 regards 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, 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 Americans 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 was a “fire in a crowded theater” test in Schenck, which there wasn’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 Americans 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 (ACLU) 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, the legislative counsel for the ACLU.
This is precisely why Tim 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 Americans that because there are theoretical limits to free speech, their censorious proposals are justified and constitutional.
Tim Walz almost certainly knows how flimsy his “crowded theater” rhetoric really is, but he’s likely counting on Americans to either not know or not care. But Americans should know and we should care.
Historically, the most violent and authoritarian regimes in history cemented power by crushing free speech. This is why Americans should heed Benjamin’s Franklin’s 300-year-old warning:
"Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
The reason you can't cry fire in a crowded theater is that no one has a right to recklssly endanger the public health and safety. Free speech, per se, has no limits.