When you invoke Oliver Wendell Holmes and his “fire in a theater” argument for suppressing free speech, that what you’re really saying has no meaning except “I support the government suppression of any speech I don’t like.” Popehat:
Holmes’ famous quote is the go-to argument by appeal to authority for anyone who wants to suggest that some particular utterance is not protected by the First Amendment. Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the “fire in a crowded theater” quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying “well, some speech is protected by the First Amendment” is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don’t have to rely on a 90-year-old rhetorical flourish to support your argument.
Holmes’ quote is the most famous and pervasive lazy cheat in American dialogue about free speech. This post is not about fisking Sarah Chayes; her column deserves it, but I will leave it to another time. This post is about putting the Holmes quote in context, and explaining why it adds nothing to a First Amendment debate.
It means they have no basis for arguing for the suppression of a particular kind of speech, yet seek to do so anyways.
2012-09-24 :: madlibertarianguy