A Crowded Theater Called America

CrowdSource 10.7.2024

Oct 07, 2024

Welcome to CrowdSource, your weekly guided tour of the latest intellectual disputes, ideological disagreements, and national debates that piqued our interest (or inflamed our passions). This week: freedom of speech.

Join us! CrowdSource features the best comments from The Crowd — our cherished readers and subscribers who, with their comments and emails, help make Wisdom of Crowds what it is.

The Law and Free Speech

During last week’s VP debate, Democratic nominee Tim Walz made two claims about freedom of speech, which provoked a flurry of commentary.

First Claim: The First Amendment does not protect “threatening, or hate speech.”

Walz is just wrong. Here’s Emma Camp: “While threats aren't protected by the First Amendment, ‘hate speech’ most certainly is. Speech that is merely offensive — and not part of an unprotected category like true threats or harassment — has full First Amendment protection.”
SCOTUS errs on the side of protecting speech. In 2010, the Supreme Court declared: “The First Amendment itself reflects a judgment … that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Second Claim: “You can’t yell fire in a crowded theater. That’s the test, that’s the Supreme Court test.”

The “test” Walz refers to comes from Justice Oliver Wendell Holmes’ 1919 opinion in Schenck v. United States. Robert Shibley provides historical background: “Charles Schenck wrote and distributed a pamphlet urging Americans to peacefully resist being drafted to fight in World War I. … The true insidiousness of the ‘fire in a crowded theater’ phrase is the way that, from the very beginning, it has been wielded to justify censorship of a broad range of speech that has nothing to do with fires or theaters.”
Logical Analysis. Last December Jeff Kosseff argued that the crowded theater line doesn’t make for a good test, because “sometimes you could yell ‘fire’ in a crowded theater without facing punishment. The theater may actually be on fire. Or you may reasonably believe that the theater is on fire. Or you are singing in a concert, and ‘fire’ is one of your lyrics.”

The Politics of Free Speech

Walz’s debate comments reminded commentators of another claim he made in December of 2022: “There’s no guarantee to free speech on misinformation or hate speech and especially around our democracy.” The debate over free speech is really a political debate about whether the state has the power to regulate media.

The State Should be Resisted. Matt Taibbi writes: “Speech issues are always a proxy for larger questions about who has power over whom. … Politicians know this and constantly try to flip the script, usually by spinning public discussion away from the perspective of voters, back in their direction. To keep civil liberties on the defensive, politicians ask over and over where ‘the line’ should be drawn. Mustn’t there be some limits? … After enough repetition, people internalize the fears of government.”
Social Media is not the State. Adam Serwer argues: “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 … Social-media moderation is not state censorship, and it should not be treated as such.”
Algorithms are not Neutral. Says Thomas Chatterton Williams: “It’s not a question of free speech, it’s a question of why content like this is consistently being algorithmically boosted — sometimes by the owner of the platform [Elon Musk].”

The Philosophy of Free Speech

Ten years ago, political theorist Samuel Goldman framed contemporary American debates over free speech as a dispute between the English Liberal John Stuart Mill and German Marxist Herbert Marcuse.

Are You Ready for Freedom? Goldman writes: “According to Marcuse, many people who appear to be rational, self-determining men and women are actually in a condition of ideological enforced immaturity. They are therefore incapable of exercising the kind of that Mill’s argument presumes. In order to make debate meaningful, they need to be properly educated.”
Why Listen to Others? Here’s Mill’s case for freedom of speech — why it should be legally protected, and why it’s a good thing in itself:
- First, “the opinion which it is attempted to suppress by authority may possibly be true.”
- Second, the opinion “may, and very commonly does, contain a portion of truth.”
- Third, even if the opinion is true, “unless it is .. vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice.”
- Finally, “the meaning of the doctrine itself will be in danger of being lost” if it does not regularly have to refute counterarguments.

From the Crowd

Katherine Dee’s manifesto, “No, Culture is Not Stuck” generated a lot of interesting responses. Among them:

Hayden Douglas: “Dee might argue that remix culture — particularly the kind we see on social media —represents a new form of appreciation that we haven’t yet fully recognized. But I would need to hear a convincing defense that digital remix culture isn't largely shallow. Much of it seems narrowly focused on the present, without reaching back far enough to draw on deeper insights about human nature or history.”
Agnes Callard: “I wonder what [Dee] thinks about the claim that speed of cultural change is just what marks the demise of culture. Healthy culture is precisely “stuck” and “stagnant” because the job of culture is to keep (that) culture going. (On this picture, culture has been dying — slowly at first, and then faster and faster — for about 150 years.)”