Lots of chatter on the airwaves and in print lately probing the limits of free speech, the justifications for censorship and the future viability of the US constitution.  It was a talking point in last night's VP debate as well, during which Walz recited the folk-loresy understanding of the issue:  "you can't yell fire in a crowded theater."

Here's a PSA on this little gem a bit in case you ever find yourself up against it.

The phrase comes from supreme court Justice Oliver Wendell Holmes Jr during the 1919 case Schenck v United States.  Anyone unfamiliar with this case might be shocked to learn that it had nothing to do with shouting fire, or with any kind of mischievous, anti-social trouble-making whatsoever.  At stake was the printing and mailing of pamphlets to draft-eligible men that made the case that the draft was against their constitutional rights and inviting citizens to peacefully abstain.  In other words, what was at stake in the trial were the defendants right to criticize perceived government transgression of the constitution, exactly what the first amendment was designed to ensure.

Amazingly, what was passed down to our collective memories about this episode is not the hard truth that governments will attempt to violate constitutional rights for their own, arguably nefarious, ends (a conceptual inheritance that would strengthen civic support for free speech), but rather the wildly inaccurate analogy of the crowded theater (an Orwellian description of the case that suggests government censorship is there to protect us and keep us safe).  And even though the precedent of Schenck was overturned in 1969, the "fire in a crowded theater" litmus test still lingers as the operative heuristic for a great many Americans, including, apparently, one of the candidates for Vice President of the country.

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