Shouting Fire In A Crowded Facebook Newsfeed
The First Amendment is back in the headlines, but many people still don’t know exactly where their right to free speech begins and ends. If you were to ask someone, they would likely cite the famed ” shouting fire in a crowded theater” quote.
But what is meant by “shouting fire in a crowded theater”? The answer might surprise you, as the origin dates back to former Supreme Court Justice Oliver Wendell Holmes’s decision to uphold the sentencing of a prominent socialist named Charles Scheck – for the crime of distributing anti-draft flyers. The Decision, though often quoted as an example of Holmes’s wisdom, created a precedent in which scores of political critics were jailed for voicing their dissenting opinions.
In essence, the “shouting fire in a crowded theater” ruling severely mitigated the scope of the 1st amendment right to free speech. The “shouting” was having a dissenting opinion, and the “crowded theater” was America.
The first amendment was not intended for those voicing the mainstream, majority opinion. While often hard to look past, freedom of speech is most important when the opinions are taboo or not universally held. While the letter and spirit of the amendment have long been violated, a new, surprising supreme court ruling has garnered much attention from media outlets.
18 U. S. C. 875(c) is a law that “makes it a federal crime to transmit in interstate commerce ‘any communication containing any threat to injure the person of another.'” Mr. Elonis, a resident of Pennsylvania, shared the following messages on his Facebook account:
“Did you know that it’s illegal for me to say I want to kill my wife?”
“I’ve got enough explosives to take care of the State Police and the Sheriff’s Department”
“Pull my knife, flick my wrist, and slit her throat”
“hell hath no fury like a crazy man in a Kindergarten classroom”
The jurors were told, if a “reasonable person would foresee that his statements would be interpreted as a threat,” then they were to convict Mr. Elonis.
After the supreme court ruled in Mr. Elonis’ favor, many saw the ruling as a defense against the defendant’s egregious comments. However, the overturned ruling was due to the prosecutor’s failure to instruct the Jury to consider the subjective intent of Mr. Elonis.
Justice Roberts wrote, “In free societies at least, how a court arrives at a guilty verdict matters as much as whether it arrives at a guilty verdict.”
The hyperbolic headlines describing an extension of first amendment rights have no basis in reality, as a brief read of the court’s decision would make clear. No such extension has occurred; the ruling was merely a result of incorrect juror instructions.