The “fire in a crowded theater” case involved neither a fire, nor a theater, nor a crowd, and resulted in one of the worst Supreme Court decisions ever reached. But the phrase fire in a crowded theater was repeated by both vice-presidential candidates during their debate on Tuesday, demonstrating an ongoing misunderstanding of free speech.
Toward the end of the debate, the Democratic vice-presidential nominee, Tim Walz, pointed out that former President Donald Trump tried to overturn—first by fraud and later by force—the 2020 presidential election, which he lost. J. D. Vance, the Republican who was selected to replace former Vice President Mike Pence on the ticket precisely because he is the sort of quisling lapdog who would participate in such a scheme, retorted that Walz supported “Facebook censorship.”
“You can’t yell ‘fire’ in a crowded theater. That’s the test. That’s the Supreme Court test,” Walz said.
“Tim. Fire in a crowded theater? You guys wanted to kick people off of Facebook for saying that toddlers should not wear masks,” Vance replied.
The equivalence that Vance draws between social-media moderation and Trump trying to stage a coup is ridiculous, but revealing in terms of how conservatives have come to conceive of free speech: They believe that right-wing speech should be sacrosanct, and liberal speech officially disfavored. Walz is simply wrong about the Supreme Court standard for what kind of speech can be outlawed, but the invocation of that archaic test does illustrate how safety can become an excuse for state censorship. It just so happens that social-media moderation is not state censorship, because social media is not the government.
In 1919, the Supreme Court upheld the convictions of socialist anti-war protesters under the Espionage Act in Schenk v. United States. The accused, Charles Schenk and Elizabeth Baer, had been passing out flyers urging people to resist the draft during World War I. The Court ruled unanimously in an opinion written by Oliver Wendell Holmes Jr. that the convictions were constitutional, with Holmes writing, “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.” (The next time someone tries to tell you that “words are violence” is something left-wing college students came up with, remind them that the U.S. Supreme Court said it first.)
The cultural context here is as important as the legal one. As the legal scholar Geoffrey Stone writes in Perilous Times, the country was in the throes of the first Red Scare, and the Supreme Court was “firmly in conservative hands. The values and experiences of the justices led most of them to hold anarchists, socialists, and other ‘radical’ dissenters in contempt.” As Stone notes, Schenk and Baer’s pamphlets urged political support for repeal of the draft, not even unlawful obstruction of it. The justices, however, did not consider the political beliefs of those they were judging to have value, and therefore they had no problem seeing people thrown in jail for those beliefs, no matter what the First Amendment said. After all, it was wartime.
So there was no fire, no crowd, and no theater. What actually happened was that some people had unpopular political beliefs and the government wanted to throw them in jail, and the Supreme Court said that was fine. That also happens to be the kind of thing that Trump wants to do as president, the kind of thing that the arch-conservative Supreme Court has decided he should have immunity for doing.
The Schenk standard, however, was repealed in Brandenburg v. Ohio in 1969, a case involving Clarence Brandenburg, a Ku Klux Klan leader who was convicted under a state law that prohibited advocating political change through terrorism. The Supreme Court—then a liberal court, something that had not existed before and has not since—overturned his conviction, ruling that that government can only bar speech advocating “imminent lawless action” that is “likely to incite or produce such action.” Stone writes that the Court was trying to tie its own hands to prevent the government from acting under the spell of “fear and hysteria” that can be brought on by wartime. It’s a much better standard than the kind that gets you imprisoned for handing out pamphlets. (Vance, a Yale Law graduate, is probably aware that Trump’s speech working up a mob that went on to ransack the Capitol and try to hang Pence could meet that much higher standard, known as the “Brandenburg test.”)
But the fact that the government can put you in prison points to how matters of free speech are different for social-media companies. Social-media companies can’t put you in prison, because they are not the government. They can ban users for not adhering to their standards, but this in itself is a form of speech: Just as the right-wing website Breitbart does not have to publish my writing, social-media companies do not have to publish the content of users who violate their rules. Social-media moderation is not state censorship, and it should not be treated as such. Conservatives understand this when the moderation decisions land in their favor, which is why the union-busting billionaire Elon Musk’s favoritism toward conservative speech and attempts to silence his critics on the social-media platform X have not drawn the attention of the Republican majority in Congress. Nor should they—he owns the place; he can do what he wants with it. The point is that conservatives fully get the distinction when they want to.
Vance’s implicit position is that conservatives have a state-enforced right to the use of private platforms; that the state can and should force private companies to publish speech that those companies disagree with, as long as that speech is right-wing. Such a policy really would be a form of censorship.
Immediately after Trump’s disastrous September debate, conservatives, including Trump himself, began calling for ABC News to lose its broadcast license for fact-checking Trump’s lies about Haitian immigrants in Springfield, Ohio. These threats of state retaliation against media outlets—or anyone who speaks out against Trump—illustrate that what conservatives mean when they talk about free speech is a legal right to use private platforms as venues for right-wing propaganda, whether or not those platforms wish to be used that way. That is a form of censorship far more authoritarian than private social-media platforms deciding they don’t want to carry rants about COVID shots putting microchips in your blood that can receive signals from alien invaders.
As for Walz, he foolishly cited an archaic standard that the Supreme Court has thankfully abandoned, one that in actuality shows how dangerous it can be for the government to pick and choose which speech is acceptable. Walz has previously asserted that “misinformation” and “hate speech” are not protected, a mistaken belief that is unfortunately popular among some on the left. The flawed standard he cited last night explains why such speech is and should be protected—because the window for state power to police what individual people say should be as small as reasonably possible.
His opponents Trump and Vance, however, do not think that such an approach is dangerous at all. A government that chooses which speech to punish and which to promote is their ideal situation, provided that they are the ones in charge.