Free Speech?

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. Gompers v. Bucks Stove & Range Co., 221 U. S. 418, 221 U. S. 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

     [Schenck v. United States, 249 U.S. 47 (1919) (link) Emphasis mine.]

My object here is to enlarge the context of the terrorist attack on personnel of the French satirical magazine, Charlie Hebdo, in Paris—in reaction to which Free Speech is (as it were) being deified. In actual fact, there are limits to free speech, at least in the United States, when its use or abuse presents a clear and present danger. Here, anyway, according to Chief Justice Holmes back in 1919, there are substantive evils that Congress has a right to prevent.

The case decided in Schenck v. United States dealt with  “A conspiracy to circulate among men called and accepted for military service under the Selective Service Act of May 18, 1917, a circular tending to influence them to obstruct the draft.” That action, very mild in the context of our time, was “within the power of Congress to punish.” The quotations from the case itself.

Just where these limits to Free Speech actually fall appears to have become very ambiguous, evidently depending on which side of an issue you’re on, whose ox gets gored, and so forth. If we look at the actual flavor of Charlie Hebdo, provided on this Google dump of images here, it is obvious that the paper attacks just about everything. One of their covers, visible here, cited by some to show that the paper exercises its satire on all faiths, shows the Bible, Torah, and Qur’an as rolls of toilet paper. In the secular world, such things are deemed Okay and unremarkable. But Holmes, in Schenck, noted, immediately after the quote given above, that “The character of every act depends upon the circumstances in which it is done.” In today’s circumstances it may be just fine to badmouth Christianity and Judaism, but plain facts, going back some years now, indicate that Hebdo was creating a clear and present danger—to itself and all those who, by proximity to it, might become “collateral damage” to an attack on its use of Free Speech.

Pondering these matters, Brigitte had a sharp intuition. Odd, she said, that we set clear limits on attacks on bodies but attacks on human minds are defended passionately and there is no limit whatsoever. Well, according to our Supreme Court, there are situations in which “the freedom of speech protected by the First Amendment may become subject to prohibition.” But we are so busy in our selective outrage that we have no time actually to think about things at all, never mind such unspeakable horrors as limiting Free Speech.