Last modified: 7:58 AM Saturday, 14 January 2017

Of ‘sedition,’ jurists and burning theaters

It has long seemed to me that Oliver Wendell Holmes’ rationale for upholding the World War I-era Sedition Act was founded on sophistry.

'No free speech'

As every great leader knows, there are times when free speech is a danger to society and must be suppressed.
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We all know, of course, of the analogy that Holmes famously constructed: that of someone yelling “Fire!” in a crowded theater. Of course, it was plain that we must all agree that to do such a thing was destructive mischief of the worst kind, since it would instigate a panicked stampede that would lead to many injuries and perhaps some deaths; therefore, public law had a right to forbid such conduct — whether literal or metaphorical — as posing a “clear and present danger.”

Suppose, however, that the theater really is on fire.

In such a case, I am fairly certain that Holmes would have called upon whoever became aware of this condition to make it known, calmly and discreetly, to an usher at his first opportunity.

But now imagine that you, and others, have repeatedly spoken to the ushers — and been calmly assured that there was no fire and that, as responsible theater-goers, you should return quietly to your seats and avoid disturbing your fellow viewers. The fire, meanwhile, burns on; the flames leap from curtain to curtain, crawl from board to board, column to column. And the theater’s other patrons, avid to get their money’s worth of entertainment, remain oblivious to their growing peril, enthralled by the special effects and drama on the big screen.

You and the others who have perceived the fire, having also seen one another in the act of alerting the ushers, gradually, grudgingly, come to understand something: The theater management — based far away, although its representatives man every one of its theaters — is aware of the fire and has been for some time. But, for reasons of its own, it has decided to ignore the threat. Perhaps, you speculate, it has long wished to destroy this building in order to collect on the insurance, hoping to use the proceeds to purchase a better facility, and the lives of those now inside are not a factor in its calculations — indeed, perhaps management proposes to blame the fire on the dead, as it has done after similar incidents elsewhere. It is a grim hypothesis, but the circumstances and history build a grimly consistent record that leaves no rational alternative.

And the fire burns on.

What will you now do? What can you do? There are precisely three choices: to accept the edict of the ushers, on behalf of management, and lull yourself with drama and special effects, cheerfully insensate to the threat until the flames burn high and engulf you; to become a party to the grisly machinations of the callous and feckless management by remaining silent, helping to quell any others who become concerned, and hoping the local management will let you escape the flames in its goodly company; or to cry out, as loudly as you can, and hope to awake some at least of the minds somnolent with perpetual fictitious excitement to the fact of the encircling blaze before the ushers can silence you.

What would you do?

Originally published as a review of an article on WikiLeaks and freedom of speech.

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