On Wednesday, House Minority Leader Nancy Pelosi, D-Calif., gave an interview with local San Francisco TV station KRON. When asked about her calls for a group to be denied a permit which wanted to exercise their First Amendment rights at a national park, her argument was … strange.
Pelsoi said, “The Constitution does not say that a person can … yell ‘wolf’ in a crowded theater. If you are endangering people, then you don’t have a constitutional right to do that.”
Maybe Pelosi is a big fan of the “Twilight” films or has been watching too much “Game of Thrones,” but I think she mixed that metaphor up just a little bit.
But even if Pelosi had trotted out the worn-out argument that certain speech isn’t protected because “you can’t shout ‘fire’ in a crowded theater,” she would still be confused.
This strawman argument made by defenders of government censorship of speech dates back to 1919 and, surprise, surprise, has nothing to do with actually yelling fire in a crowded theater.
Instead, this rhetorical flourish — written by Supreme Court Justice Oliver Wendell Holmes — was about the free speech right of the Socialist Party of America chair, Charles Schenck, to criticize the draft during World War I.
The pamphlet, which was in part produced by Schenck, urged for a peaceful resistance to the draft. Nevertheless, Schenck’s conviction under the Espionage Act was upheld unanimously by the Supreme Court.
It was Holmes’ opinion which led to the too-often misquoted “fire in a crowded theater” phrase.
As Holmes wrote: “We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done…. the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
Remember, this was about peaceably opposing the draft — hardly the equivalent of causing a panic leading to the trampling of unsuspecting movie goers. Thankfully, a more free speech-friendly Supreme Court eventually overturned this precedent.
Just to recap, Pelosi not only completely screwed the pooch on the metaphor, but also cited a case in which a Socialist leader was jailed for opposing a war. I don’t think many of Pelosi’s supporters in San Francisco would like the current presidential administration to have that same power to jail dissidents.
Thankfully, for the rest of us, the First Amendment protects the rights of Pelosi to continue to be wrong about so many things.
Eric Peterson is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a writer based in Arlington, Va.
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