Few things set my teeth on edge more than someone quoting Justice Oliver Wendell Holmes’ classic rhetorical overreach to justify squelching free speech, but there it was again today coming out of the mouth a former Supreme Court justice.
Doug McMurdo’s story has retired Justice John Paul Stevens, right, arguing against a court ruling that upheld flag burning as protected speech, recounting the circumstances of Johnson v. Texas.
Today’s story paraphrases Stevens, “As the flag burned, Stevens recounted, the protesters chanted, ‘America, the red, white and blue, we spit on you.’
‘Those were fighting words. Much like yelling fire in a crowded theater that isn't actually on fire is not protected speech due to the harm it could cause, Stevens said the flag burning and chants certainly could have incited violence.”
But it didn’t, and neither did the man who went to jail for what Holmes’ thought was tantamount to falsely shouting fire in crowded theater.
What Charles Schenck did was distribute a flier that questioned the constitutionality of the draft during World War I by citing the 13th Amendment prohibition against slavery and involuntary servitude. Holmes basically banned speaking out against the acts of one’s own government by petitioning it for redress of a grievance — a one-two punch to the First Amendment.
A Clear and Ppresent Danger To our Free Speech Rights
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