By Thomas Mitchell
Joe Biden graduated law school 76th out of 85 students in 1968. Maybe he hasn’t bothered to keep up with the status of jurisprudence since. During his remarks to a joint session of Congress Wednesday evening, he declared, “And no amendment to the Constitution is absolute. You can’t yell ‘Fire!’ in a crowded theater.”
Maybe those words were improvised on the fly, because they do not appear in his prepared text. Yes, in 1919 in the case of Schenck v. U.S. Justice Oliver Wendell Holmes declared, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
President Biden said nearly the same thing in a Rose Garden speech in April 2021.
And just what was tantamount to “falsely shouting fire” and constituted what was labeled the “clear and present danger” test? Charles Schenck was convicted under the 1917 Espionage Act for distributing pamphlets urging resistance against the World War I Selective Service Act — the draft. His pamphlet argued that conscription was tantamount to indentured servitude, which was barred by the Thirteenth Amendment following the Civil War. He was making a legal argument, Holmes compared that to causing a panic.
Even Holmes himself backed off this stance in a later case: “Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker’s enthusiasm for the result.
Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”
This was pointed out in the case of Brandenburg v. Ohio, which essentially overturned Schenck and established a much stricter free speech standard. The court held, “Freedoms of speech and press do not permit a State to forbid 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.”
Imminent lawless action. Of course, that case was concluded in 1969, a year after Biden finished low in his graduating law school class. Perhaps he’s not
bothered to keep up since.
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Thomas Mitchell is a former newspaper editor who now writes conservative/libertarian columns for weekly papers in Nevada. You may email Mitchell at firstname.lastname@example.org. He blogs at http://4thst8.wordpress.com/.