A commenter at the New York Times wrote: “There are zero conditions for freedom of speech. Only that it doesn’t cause an immediate danger to the public (i.e. shouting “fire” in a crowded theatre).”
This is a sentiment I come across often and with which I have a couple of issues.
One is that it is absolutist. If the conditions of free speech are rigid, they become comforting. You now know what the contours of free speech are, so you no longer have to worry about them. In my opinion, however, free speech becomes less free if you can easily define its contours.
The crowded theatre phrase was uttered by a judge in an opinion in 1919, almost a hundred years ago. Judges live in a kind of fluid world. They create law by jurisprudence, but they also know that if their arguments aren’t strong enough, the next judge will overturn their laws. If Oliver Wendell Holmes said something about shouting fire in crowded theatres, he was probably vain enough to hope for immortality, but unlike the average internet commenter, he also knew his opinion could be replaced at any time by another court.
The other issue I have is that the crowded theatre statement betrays a really low opinion of free speech. Apparently free speech is never dangerous, is always ineffectual. As soon as it challenges, mocks, riles, irritates, provokes, speech becomes dangerous and loses its privilege of being protected.
The above mentioned judge did make that distinction, by the way. The New York Times quote is incomplete. What Oliver Wendell Holmes actually said was: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”
The distinction is in the word ‘falsely’. Dangerous speech can be good. It can topple a dictator and set a people free. It can alert a group of theatre goers of a fire. In the ensuing stampede for the exits some people may be trampled to death, but generally that is to be preferred over everybody dying in the fire.
When people get trampled unnecessarily is where judge Holmes draws the line.