Shouting Fire In A Crowded Theater: An American Right

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.

Oliver Wendell Holmes, Schenck v United States (1919, 249 US 47)

The other day, Facebook censored me. In their vast, infinite wisdom, the powers that be Zuckerberg decided this post, which I had also put out on Twitter, was offensive:

The problem with banning all "hate speech" is that inevitably one collides with the historicity of hate.

If we do not study who Hitler was and what he said, how will we overcome his ideas?

https://t.co/znduwD4Cly#censorship #FreeSpeech

— A Voice of Liberty (@avoiceofliberty) June 8, 2019

I am unsure of why Facebook felt this was offensive and needed to be removed. Certainly, none of the other platforms expressed any concern over the item. Nevertheless, shortly after making the post I was greeted with this in my Facebook inbox:

The reflexive response of the classical libertarian is to scoff at my discomfiture, and remind me that, as a private company, Facebook is entirely within its rights to decide what can and cannot be posted on its platform. Certainly it is true that we do not want, as a rule, government micromanaging the affairs of private enterprise.

But is Facebook within its rights to arbitrarily ban such content? Does that claim stand up under scrutiny? I have come to the conclusion that a proper reading of the First Amendment means that Facebook does not have such a right.

Let us begin with the text of the First Amendment itself:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The common presumption is that the First Amendment acts to prevent the government from inhibiting one's freedom of speech, but private individuals are free to do so with impunity.  Yet the text of the Amendment itself does not support such a restriction.  The rule is simple: Congress cannot pass any law which results in an inhibition of speech. This binding upon Congress is simple, categorical, and absolute--in its language the First Amendment, along with the Second, are the most categorically phrased and rhetorically inflexible passage in the whole of the Constitution, including its amendments.  

If a law inhibits free speech, regardless of scope or intent or involved agency, that law is immediately repugnant to the Constitution and must therefore be declared void, as per Marshall's famous conclusion in Marbury v Madison (1803, 5 US 137). Marbury and the language of the First Amendment admit of no other conclusion.

As it so happens, there is such a law, under which Facebook is given free rein to block, screen, and delete content it deems "offensive"--the Communications Decency Act, or rather the "safe harbor" provision of that statute found at 47 USC 230. Social media platforms are protected from liability when they take steps to "protect" people by blocking content that is offensive and hateful. By virtue of that law, Facebook is given liberty to decide that even a scholarly mention of Adolf Hitler warrants suppression and censorship.

My contention is that this law is blatantly unconstitutional. There is no denying that a bit of speech was suppressed, and thus my right of free speech was abridged. On what basis? Contrary to their notice of my post being deleted, it was certainly not "spam", and certainly not by their own standards. The closest any of my page postings gets to being "commercial" is the link I have for people wishing to support my research efforts by donating via BuyMeACoffee, but even at that, the post does not fit Facebook's definition of spam.

Further, my post was not "hate speech" according to Facebook's own definitions within their community standards, and could not be banned on that basis. 

Given that my posting referenced a news item in The Guardian, the basis for the post was unquestionably factual, as is the news item itself: the content removal on YouTube is having these side effects. As a statement of demonstrable provable fact, such a post is unquestionably speech and unquestionably constitutionally protected speech. By Facebook's own community standards, such speech is not only permissible but even encouraged:

Voice: Our mission is all about embracing diverse views. We err on the side of allowing content, even when some find it objectionable, unless removing that content can prevent a specific harm. Moreover, at times we will allow content that might otherwise violate our standards if we feel that it is newsworthy, significant, or important to the public interest. We do this only after weighing the public interest value of the content against the risk of real-world harm.

With no substantiated violation of their community standards, and given the principles articulated in those standards, not only was Facebook not empowered to delete the post but it had asserted a positive duty to permit such content. Thus their necessary reliance on 47 USC 230 as a cover for their arbitrary deletion of my content. If 47 USC 230 is unconstitutional then Facebook's action was wrong and indefensible.

How is 47 USC 230 unconstitutional?  47 USC 230(c)(2)(A) eliminates any civil liability for social media platform providers who block "objectionable" content even if that content is constitutionally protected. Put simply, it empowers social media platform providers to abridge the freedom of speech. Constitutionally, that can not stand. The First Amendment is the superior law, and explicitly forbids Congress from granting such waiver of liability.

The Schenck decision, in addition to being famous for Oliver Wendell Holmes' oft-quoted (and oft-misquoted) declaration, provides much of the judicial reasoning by which Congress is given leave to circumscribe the First Amendment and abridge not just freedom of speech but of the press, of peaceable assembly, and the capacity to petition for redress of grievance. In particular, it articulates the "clear and present danger" standard by which much incendiary speech is often curtailed under the law:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.

With the excessive effluence typical of legal writing, Holmes establishes in case law what is arguably common sense: when speech inspires specific action the speaker is to some degree responsible for the action.  Perversely, even though Holmes' reasoning on the evolution of speech into action (which may be circumscribed by law), his conclusion in Schenck was fatally flawed, because he never established a foundation to presume Congress had a right to prevent the actions being encouraged (i.e., obstructing the draft of soldiers to fight in World War I). However, the flawed conclusion should not detract from the relevance of the reasoning, because it reiterates how people can and should respond to speech, particularly controversial and incendiary speech--people should be held to account for their actions, not their ideas.

An important aspect of Holmes' "shouting fire" example that is frequently overlooked is the word "falsely." Holmes very clearly identifies that false speech which creates a disturbance is a problem, and in his example this makes sense--if a person shouts fire in a crowded theater, and there is a fire, panic or no his words arguably will save lives. Only if there is no such danger does the incited panic create a danger.

This concept appears again in Brandenburg v Ohio (1969, 395 US 444) , in which the "Brandenburg Test" was established, creating a two part test by which speech advocating criminal acts could be circumscribed:

1. The speech is “directed to inciting or producing imminent lawless action,  AND
2. The speech is “likely to incite or produce such action.”

The linkage is clear: people must account for their actions, not their ideas.

While we commonly presume these criteria apply only to government acts and agencies--and certainly the Brandenburg Test is necessarily limited to governmental authority, as it involves explicit criminality--accountability standards among private citizens and thus private corporations is a foundational element of even civil law.  Accountability is what allows for the creation and adjudication of torts, civil wrongs for which liabilities are assessed based on provided facts and evidence. As accountability is a doctrine that goes beyond government authority and agency, it is hardly a stretch to argue that prohibitions against abridgments of free speech also go beyond government authority and agency.

When Congress passed the Communications Decency Act, it empowered social media platform providers to decided whether or not people should be allowed to shout fire within their crowded theaters--not falsely, but factually. They are empowered to police not actions, but thoughts and ideas, a legal doctrine that is charitably described as Orwellian.

Moreover, despite the passage of the CDA, the courts have established that social media are a "digital commons", the public square of the 21st century.  This was articulated in 2017 by Justice Anthony Kennedy in Packingham v North Carolina (2017, 582 US ___) , and reiterated by Judge Naomie Reice Buchwald in Knight First Amendment v Trump, (2018, 302 F.Supp.3d 541) in her ruling establishing President Trump's Twitter feed (if not all of Twitter itself) a public forum. The CDA gives private citizens the power to police the digital commons in a way the government is not allowed to police a physical commons.

The standard Oliver Wendell Holmes articulated in Schenck was the correct standard, even if erroneously applied: hold people accountable for actions, not thoughts and ideas.  We can withstand incendiary words, even violent words, and certainly controversial words  Challenging thoughts will not harm us, and may even educate us. So long as we do not substitute physical violence for rhetorical violence, so long as we remember that our right of free expression does not give license to seek out the harm of any other person, we should not seek to inhibit the expressions and speeches of others.  We should be reluctant to silence and suppress, not eager. Censorship is never good policy--it is not good public policy nor is it good business policy. In most cases, it is not even legal (and should not be thought of as legal despite the highly erroneous rulings of the courts in this regard).

The First Amendment says Congress shall pass no law abridging the freedom of speech. It should be intuitively obvious that, with such prohibition in effect, Congress may not pass any law empowering  private citizens to do it for them.

Justice Kennedy's Retirement Is A Reminder That Every Day Is A Time For Choosing

A great deal of speculation, pontification, and blatant posturing followed Justice Anthony Kennedy's June 27th announcement of his retirement from the Supreme Court. Predictions of a coming reversal of newly-won (some would say newly-created) civil rights abound. Celebrations of the first decidedly conservative Supreme Court in seventy years flow with equal abandon.

As is common when politics intersects the law, both sides are missing the point.

Justice Kennedy's retirement--as is the case with all outgoing Supreme Court justices--is a moment that calls each citizen to remember the role the Court plays not only in our government but in our society.  It is a reminder that our elected officials, our Presidents and Senators, are empowered to impact both government and society not only for this generation, but for all subsequent generations. If our elected officials typify the society we are today, justices illuminate what manner of society we will be tomorrow. The composition of the Supreme Court is not a "liberal" or "conservative" question, nor even a purely political question, but is an "American" question.

Justice Kennedy's retirement is an invitation to reread what the Constitution says about the Supreme Court, and understand what role it plays in Constitutional government.

The Supreme Court is the only court in the United States mandated by the Constitution (Article 3, Section 1):

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The Supreme Court is an appellate court for almost all cases within Federal jurisdiction (Article 3, Section 2), " both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Appellate jurisdiction empowers the Court to review both the verdicts of lower courts within the Federal judiciary and their interpretations of Federal law, which includes assessment of the Constitutionality of Federal law.

Under the Constitution, the Supreme Court is the highest judicial authority. Its interpretations of Federal law are binding upon all Federal courts, and its rulings are applicable to the whole of the Federal government--as Chief Justice John Marshall wrote so powerfully in Marbury v Madison, "It is emphatically the duty of the Judicial Department to say what the law is." Yet it does not possess unlimited power or unlimited authority. The 11th Amendment sharply limits its jurisdictions where disputes involve a single state, and by inference John Marshall's own assessment of the role of the Court does not extend to saying what the law should be--that duty is reserved to the Congress.

The truth of the Supreme Court is that its Constitutionally-defined construction and jurisdiction are distinctly non-partisan and non-ideological. Political ideologies are the foundations of advocacy for what laws we should have, and what laws we should discard, but no advocacy can alter the text of the laws as they are written. The role of the Court is to apply the law--apply the letter of the law--to cases brought before it, and the law is neither liberal nor conservative; rather, the law merely is.

Naturally, both liberals and conservatives desire judges and justices who will interpret the law in ways that favor their political aims.  This has always been true, and it will always be true. It is also true there have been judges and justices who have contorted and distorted the law (including the Constitution), to arrogantly impose their views on society--such cases are etched permanently in our judicial comprehension: Dredd Scott v Sanford, Roe v Wade, Obergfell v Hodges. Yet the Constitution calls for a Court that rises above both partisan and personal ideology, that dispassionately reads the law as it is written and just as dispassionately applies it to the cases brought before it.

The Supreme Court is not merely the balancing third branch of the Federal government, acting as a brake upon the predations of both the legislative and executive branches against the rights of the people. By its explicit charter within the Constitution, it is the guarantor that the rule of law shall remain the foundation of this Republic. John Marshall was not the first to conceive the idea that no act of Congress could contravene the Constitution--the Kentucky and Virginia Resolutions argued that exact idea in much the same language as Marshall some five years prior to Marbury--but it was the Court's finding in Marbury that put the matter beyond all dispute, "...an act of the Legislature repugnant to the Constitution is void." The Court is this nation's assurance that not even the Congress can contradict the Constitution.

Thus it is that the promise of the Court, if not always its legacy, is that, under our Constitution, within the limits of the Constitution, the rights of all people shall always prevail.  The Court thus becomes the embodiment of the Constitutional ideal, that this Republic be governed by laws rather than men.  This is the Court we can have, so long as sober and serious justices occupy its bench.

Yet justices are but men, and they are appointed by men, who are in turn elected by men. So it is that Justice Kennedy's retirement is a reminder to us all that Constitutional government only works when We The People are prepared to do the work of governance.  We will only have the Court the Constitution promises us if we elect Presidents and Senators who understand, appreciate, and esteem that promise, and who are serious in their oath of office to ensure they appoint justices who will give us that Court.

Justice Kennedy's retirement, as is the retirement of every justice, is the periodic reminder that, in a republic, every day is a time for choosing. Every election is a matter of consequence, and every vote is of significance. Justice Kennedy's retirement is our periodic invitation to engage with our government, with both the President and the Senate, to petition that we might get the justices and the Court the Constitution has promised to us.

The Court may say what the law is, but ultimately it is We The People who will say what the law should be, and it is We The People who will say how the Court shall be. As Justice Kennedy closes his long and distinguished tenure on the bench, the best honor we could show him would be to remember this simple truth, and to put this simple truth into action, today, and every day.