By Emily McCarthy
Back when I was young and dumb, I traveled to a North African nation in the summer of 1998 to visit a college friend who was enrolled in an Arabic study abroad program. It was my first time visiting the African continent as well as a Muslim country and, being overstimulated by the shock of it all, I had a lot of questions. What do you mean President Ben Ali had been in power since 1987? What does a bloodless coup mean? Why am I being shushed for asking these questions? Curiosity is normally viewed in a positive light, however, when and where you ask certain questions can matter. Take my word for it that crowded public buses are not ideal for inquiring about the current political climate in pre-Arab Spring Tunisia. We weren't in Kansas anymore.
Call it a lesson in cultural sensitivity and new-found appreciation for the First Amendment (1A) of the U.S. Constitution. So important were those five freedoms (speech, religion, press, assembly, and the right to petition the government) to the framers of the Constitution, they made sure to highlight it upfront, guarantee it to anyone in the U.S. regardless of age, citizenship, or politics - you can use 1A to advocate or oppose change. That said, while 1A protects us against government limits (there are certain narrow categories of “low” value speech) on our freedom of expression, private organizations can set their own rules.
Of late, there’s been a lot of talk regarding the freedom of expression, be it from what’s going on over at Twitter, the protests in Iran, and even Dave Chappelle weighing in once more on the hypocrisy of censorship. Debates on the freedoms protected by 1A have been ongoing and evolving for a lot longer than I’ve been alive which serves as a living example of those rights in action. I was today days old when I realized that the “shouting fire in a crowded theater” analogy is not only inaccurate but further evidence of my dumbness. Emma Camp recently wrote an article entitled “Yes, You Can Yell ‘Fire’ In A Crowded Theater” which was written to school people like myself (and apparently a Supreme Court Justice).
In his opinion, Justice Oliver Wendell Holmes wrote that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, "the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority." The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.
"Anyone who says 'you can't shout fire! in a crowded theatre' is showing that they don't know much about the principles of free speech, or free speech law—or history," Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. "This old canard, a favorite reference of censorship apologists, needs to be retired. It's repeatedly and inappropriately used to justify speech limitations."
Well, that’s a more you know moment if I ever saw one, which brings me to what I really want to talk about in terms of freedom. This month, GORUCK hosted Vets Town Hall events in Jacksonville Beach and San Diego. Vets Town Hall was started by author Sebastian Junger with the aim of increasing communication and understanding between veterans and civilians in their communities.The format is simple: veterans are welcome to speak for up to 10 minutes about their experience serving in the military, focusing on their personal experiences and reflections. While not the center of controversy these days, there was a time not so long ago when speaking about one’s military service wasn’t welcome. In his speech at a Vets Town Hall, Ed Donahue, a Marine veteran, shared his story through the tumultuous times during the Vietnam War. His words reminded me of all the things I don’t know or understand.
Since that bus ride, I’m twice as old and, somehow, more curious but less certain in many of my convictions. I wonder what will happen when those Iranian players go home, what will happen when the gloves of Twitter come off. What I’m sure of is that it will be a mess because humans are the ones trying to fix or recreate the imperfect systems. And still, I am grateful to be from a place where free speech protections are among the strongest in the world. I want to share Justice Robert Jackson’s optimism from his West Virginia v. Barnette ruling, “We apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization.” Free expression overrides the goal of national unity. More voices can serve as a vehicle (not the kind where you are pulled off and detained for asking too many questions) for increased compassion and understanding, not to mention making life more interesting. Freedom of expression is best when extended to and embraced by all — even and especially when we share contrasting views and perspectives. Even if Metallica covered a mediocre Discharge song about me.