Watching the rolling news on Wednesday night last week, as the scenes of mayhem on Capitol Hill unfolded, much of the coverage focussed on whether Donald Trump would tell his supporters to go home and the choice of language he would use to do so.
His incitement of the mob – and his initial failure to condemn it – has brought into focus, yet again, the very real link between words and violence. But it wouldn’t be right to say, as Vanity Fair did in a September headline, that “Trump Is The Human Embodiment of Yelling ‘Fire’ in a Crowded Theater.” This clichéd excuse for limiting free speech doesn’t hold water.
Let us begin by recalling the origins of this vulgar aphorism. In 1917, a group of socialist, Yiddish-speaking immigrants in New York were arrested for distributing handbills to young Americans advising them to avoid the draft and not participate in the First World War. Detained under the Espionage Act, when the case (Schenck v. United States) eventually went to the Supreme Court over First Amendment rights, Justice Oliver Wendell Holmes Jr. ruled that they were correctly imprisoned as their actions presented a “clear and present danger.” In his ruling, he stated: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”
