- McJobs and Workers -

Yelling Fire Outside the Theater

Posted by: Flint Jones ( IWW, U$A ) on December 08, 1998 at 11:08:59:

In Reply to: Bad anarchist, bad!!! posted by Shaun on December 07, 1998 at 13:00:52:

Shaun: And one thing that was taught to us in school over and over again that the first amendment is not absolute, it does not allow us to yell fire in a crowded theater. I think Mike said something about that also.

Flint: Interesting that you should bring up this example Shaun, do you know exactly where its from? I'm quoting Howard Zinn's A People's History of the United States, pages 356-357.

Congress passed, and Wilson signed, in June of 1917, the Espionage Act. From its title one would suppose it was an act against spying. However, it had a clause that provided penalties up to twenty years in prison for "Whoever, when the United States is at war, shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the U.S...." Unless one had a theory of about the nature of governments, it was not clear how the Espionage Act would be used. It even had a clause that said "nothing in this section shall be constructed to limit or restrict... any discussion, comment, or criticism of the acts or policies of the Government...." But its double-talk concealed a singleness of purpose. The Espionage Act was used to imprison Americans who spoke or wrote against the war.

Two months after the law passed, a Socialist named Charles Schenck was arrested in Philadelphia for printing and distributing fifteen thousand leaflets that denounced the draft law and the war. The leaflet recited the Thirteenth Amendment provision against "involuntary servitude" and said the Conscription Act violated this. Conscription, it said, was "a monstrous deed against humanity in the interests of the financiers of Wall Street." And: "Do not submit to intimidation."

Schenck was indicted, tried, found guilty, and sentenced to six months in jail for violating the Espionage Act. (It turned out to be one of the shortest sentences given in such cases.) Schenck appealed, arguing that the Act, by prosecuting speech and writing, violated the First Amendment: "Congress shall make no law . . . abridging the freedom of speech, or of the press...."

The Supreme Court's decision was unanimous and was written by its most famous liberal, Oliver Wendell Holmes. He summarized the contents of the leaflet and said it was undoubtedly intended to "obstruct" the carrying out of the draf law. Was Schenck protected by the First Amendment? Holmes said:

The most stringgent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic... 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.

Holmes's analogy was clever and attractive. Few people would think free speech should be conferred on someone shouting fire in a theater and causing a panic. But did that example fit criticism of the war? Zechariah Chafee, a Harvard law school professor, wrote later (Free Speech in the United States) that a more apt analogy for Schenck was someone getting up between the acts at a theater and declaring that there were not enough fire exits. To play further with the example" was not Schenck's act more like someone shouting, not falsely, but truly, to people about to buy tickets and enter a theater, that there was a fire raging inside?

Perhaps free speech could not be tolerated by any reasonable person if it constituted a "clear and present danger" to life and liberty, after all, free speech must compete with other vital rights. But was not the war itself a "clear and present danger," indeed, more clear and more present and more dangerous to life than any argument against it? Did citizens not have a right to object to war, a right to be a danger to dangerous politics?

So Shaun, is that what they taught you in School about the First Ammendment? I doubt it. But civics course in school has always been more about indoctrination and control, and not about actually exercising your responsibilties as a citizen (neh, even as a human being)

Incidently, Wobblies are admant defenders of Free Speech partially because of this very Espionage Act. The Department of Justice used the act to raid 48 IWW meething halls across the country seizing everything. It arrested 165 IWW leaders. It was the longest criminal trial in American history at that time. The jury found them all guilty. 15 of them got 20 years in prison, 35 got 10 years, and the rest shorter sentences. They were fined a total of $2.500.000. All for protesting the war. To quote the Industrial Worker at that time
"Capitalists of America, we will fight against you, not for you! Conscription! There s not a power in the world that can make the working class fight if they refuse!"

I might go off about the Wobbly free speech fights (yesterday and today) another time when its appropiate.

And to be fair, that worker shouldn't have called his co-worker a bitch. It was disrespectful and sexist, and if not an isolated incident could make the work environment very difficult for her.



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