Journalists Don't Understand the 1st Amendment

On Twitter, the always illuminating Stephen Miller (@redsteeze), recently posted comments from two media members, on the The Wall Street Journal(WSJ) publishing an op-ed from Trump.

By Noah Chin

---

Wine-Banks, a MSNBC legal analyst, and Cillizza, the editor-at-large of CNN, should know better. While I can understand journalists not fully understanding the 2nd Amendment (although they should), all members of the media should understand the 1st Amendment, specifically the rights to free speech and a free press, since it safeguards their role as communicators and critics.

To give Wine-Banks credit, she seems to understand (unlike Cillizza) that the WSJ’s publishing of an op-ed is protected under the freedom of the press, but that it should no longer be protected, as it contains lies. This is absurd thinking. Plenty of respectable publications have published and will publish controversial op-eds which are protected under the 1st Amendment. Such op-eds include the New York Times(NYT) “What We, the Taliban, Want”, and “Hong Kong is China, Like It or Not”. While both of these op-eds were criticized by figures on the right, the NYT should be able to publish their opinions in their op-eds and is protected under the 1st Amendment, just as the WSJ should be able to publish Trump.

While lies are unfortunate, barring defamation, lies should be combated with criticism from the free press, not governmental interference. If the freedom of the press were to be amended to restrict the publishing of opinions, this would hurt all of the media's ability to criticize the government's actions, which is the role of the press in a republic.

In Cillizza’s criticism, he cites the oft-repeated maxim of “shouting fire in a crowded theater” to justify the limiting of free speech. Many others have used this phrase, including Joe Biden, and Chris Cuomo. Unfortunately for Cillizza and others, he is completely wrong, because any person is allowed to shout fire in a crowded theater under our current understanding of the 1st Amendment.

The origin of the term “shouting fire in a crowded theater” is in Oliver Wendell Holmes Jr. 's opinion on the Supreme Court case of Schenck v. United States (1919). At stake in Schenck was the constitutionality of the World War 1-Era Espionage Act of 1917 and the Sedition Act of 1918[1] which allowed the government to suppress dissent, through its creation of punishments to anyone obstructing enlistment in the army[2] and banned “any disloyal, profane, scurrilous, or abusive language about the form of government of the United States” [3]. Under these laws, Charles Schenck was arrested for his distribution of pamphlets, which advocated for men to ignore the draft.[4]

In a 9-0 decision, the Supreme Court ruled that the Espionage Act of 1917 did not violate the 1st Amendment. In Justice Holmes’ famous majority opinion, he ruled that as Schenck’s words and actions posed a “clear and present danger [...] that [...] will bring about the substantive evils that Congress has a right to prevent”, and compared Schenck’s actions to that of “falsely shouting fire in a crowded theater”. [5] As a result of this decision, the “clear and present danger” test for free speech was established, determining that if in the speech’s circumstances, (in Schenck’s case, America being at war) the speech caused a clear and present danger, then the speech was unprotected by the 1st Amendment.

Under the “clear a present danger standard”, the standard was used to uphold the conviction of communists for articulating socialist viewpoints[6]. It’s also not difficult to imagine a world under this standard where speech opposing vaccine mandates during a pandemic or the issuance of a travel ban is banned, with courts stressing the clear and present danger of opposing government actions during crises.

Such is the issue with the “fire in a crowded theater” saying, as when it is applied to real issues, judges will have different perceptions of whether or not certain issues constitute a fire. There is no bellwether to determine whether speech is akin to a fire or not, only the circumstances of the speech, and all too often, the Supreme Court, utilizing the Schenck test saw fires where there were not any.

Schenck v United States would be partially overturned by Brandenburg v Ohio in 1969, under which a new standard of “incitement to imminent lawless action” would be established, under which Schenck’s actions and all other actions thus mentioned, are protected by the 1st Amendment.[7] The Brandenburg standard remains the law to this day, making the phrase “shouting fire in a crowded theater” legally irrelevant when dealing with free speech.

While Cillizza’s utilization of the Schenck aphorism is almost certainly due to ignorance rather than an endorsement of the restrictive Espionage Act or for government censorship of political opinions, the idea he’s expressing- that Trump’s speech should be restricted using the Schenck test, results in a test that all too frequently prevents the expression of political opinions.

(Additionally, if Trump was still in power, Cillizza could be jailed for claiming Trump lied using the Schenck test)

When in the intense passions which often accompany politics, it is easy for anyone to become susceptible to the poisonous fruit of banning an opponent's speech. Even when we find one’s speech or the press disagreeable, we need to use our speech to disagree, instead of advocating for the erosion of rights on top of which our republic is built.

edited by Darryl Weng

Sources:

[1] :Asp, David. “Schenck v. United States.” The First Amendment Encyclopedia, Middle Tennessee State University , 2004, https://www.mtsu.edu/first-amendment/article/193/schenck-v-united-states.

[2]:Asp, David, and Deborah Fisher. “Espionage Act of 1917.” The First Amendment Encyclopedia, Middle Tennessee State University, May 2019, https://www.mtsu.edu/first-amendment/article/1045/espionage-act-of-1917.

[3]: “The Sedition Act of 1918.” Thirteen, PBS, Dec. 2006, https://www.thirteen.org/wnet/supremecourt/capitalism/sources_document1.html.

[4]: The Editors of Encyclopædia Britannica. “Schenck v. United States.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 24 Feb. 2021, https://www.britannica.com/event/Schenck-v-United-States.

[5]:Holmes, Oliver Wendell, and Supreme Court Of The United States. U.S. Reports: Schenck v. United States, 249 U.S. 47. 1918. Periodical. Retrieved from the Library of Congress, <www.loc.gov/item/usrep249047/>.

[6]:"Dennis v. United States." Oyez, www.oyez.org/cases/1940-1955/341us494. Accessed 31 Oct. 2021.

[7]:Walker, James L. “Brandenburg .” The First Amendment Encyclopedia, Legal Information Institute, 2009, https://www.mtsu.edu/first-amendment/article/189/brandenburg-v-ohio.