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Yelling “Fire” In a Crowded Theater & “Absolute” Constitutional Amendments.

Yelling “Fire” In a Crowded Theater & “Absolute” Constitutional Amendments.

Posted by Edmund R. Folsom, Esq.

May 4, 2021

President Biden has taken a shine to repeating something about constitutional rights that is very misleading.  He said it in his recent speech to a joint session of Congress:  “No amendment to the constitution is absolute. You can’t yell ‘fire’ in a crowded theater.”  He said this in connection with what he insists are reasonable proposed further restrictions on firearms.  He has said it before, and he’ll probably say it again.  I suspect polling has shown him that the formulation has a certain sophistic appeal.  In fact, it’s nothing more than a potentially dangerous misrepresentation reinforced with a non sequitur.

The second part of the President’s formulation implicates the first amendment’s speech protections, setting forth a first amendment example intended to establish that, because the first amendment which protects speech is not “absolute,” and because no amendment is “absolute,” the second amendment which protects the right “to keep and bear Arms” also cannot be “absolute.” But what does it even mean to say, “No amendment to the constitution is absolute?”

Is the first amendment “absolute?”

The first amendment right to free speech is phrased as follows:  “Congress shall make no law…abridging the freedom of speech.”  What, then, is “the freedom of speech” that must not be abridged?  When the first amendment was drafted, was all speech absolutely protected in all circumstances?  No, it was not.  Nor was the first amendment intended to create a new and absolute protection for all forms of speech not previously considered within the realm of “the freedom of speech.”  The first amendment was intended to protect speech within the realm of “the freedom of speech” as “the freedom of speech” was understood by the framers.   After all, the first amendment does not say that Congress shall make no law abridging “speech” generally and absolutely.

All we can draw from the fact that the first amendment is not intended to protect any and all speech absolutely is that the first amendment is not intended to, and therefore does not, protect any and all speech absolutely.  This certainly does not mean that the first amendment only provides limited protection for “the freedom of speech” that it does protect. It also does not establish that no constitutional amendment is “absolute.”

When the President says no constitutional amendment is absolute, does he mean to say only that each amendment expressly limits the scope of its protections, or does he mean to say that government may impose limits upon all express constitutional protections?

If President Biden only means to say no constitutional amendment is absolute because each amendment contains some express qualification or limitation in the scope of its protections, there is no reason to make that point — it has nothing to do with the argument he is attempting to advance.  It is true, for instance, that the fourth amendment does not protect against absolutely all searches and seizures.  It only protects against searches and seizures that are “unreasonable,” limiting its protective scope to the security of “the people…in their persons, houses, papers and effects.”  But what does it matter that the fourth amendment does not provide absolute protection against all searches and seizures of everything, everywhere, as pertains to whether any other constitutional amendment might be “absolute?”  It doesn’t matter at all.

As another example:   The thirteenth amendment, section 1 provides, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”  This amendment is not absolute, in the sense that it limits the scope of its protection against slavery and involuntary servitude to contexts other than punishment imposed upon criminal conviction.  But that: (1) does not tell us whether any constitutional amendment other than the thirteenth might be “absolute;” and (2) certainly does not mean that the protection against slavery and involuntary servitude apart from punishment imposed for a criminal conviction is anything other than absolute.

When the President tells us, “No constitutional amendment is absolute,” does he mean to tell us that section 1 of the thirteenth amendment does not, always and in all circumstances beyond those of punishment imposed for a criminal conviction, protect against slavery and involuntary servitude in the United States?  If so, that’s a very dangerous idea for a sitting President of the United States to hold, let alone to employ in furtherance of a political agenda.

What does yelling fire in a crowded theater have to do with it anyway?

The idea behind the popular trope, “You can’t yell fire in a crowded theater” comes from Schenck v. United States, 249 U.S. 47 (1919).  Schenk was prosecuted for his role in circulating Socialist Party pamphlets during World War I, allegedly interfering with the military draft in violation of The Espionage Act.   In addressing the application of the first amendment to Schenck’s prosecution, the U.S. Supreme Court had this to say:

“[T]he character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. 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. “

Setting aside the question of Schenck’s continuing validity in light of more recent Supreme Court cases, you can see that the commonly stated formulation, “You can’t yell fire in a crowded theater,” is itself not stated so absolutely in Schenck.  Instead, the example set forth in Schenck contains qualifiers about “falsely” shouting fire in a theater and “causing a panic” or creating a “clear and present danger.”  If a theater is on fire, there’s no doubt that the first amendment protects a person from punishment for shouting about it, whether the theater is crowded or not.

It appears the President recites his formulation, “You can’t yell fire in a crowded theater,” hoping it will persuade you that because the first amendment’s protection against abridging “the freedom of speech” is not absolute no other constitutional amendment can be absolute either.  After all, since the first amendment does not protect speech absolutely, instead allowing government to impose reasonable limitations on it, the first amendment is not “absolute.”  And because no constitutional amendment is absolute, the second amendment must also not be absolute, so it must allow the government to impose reasonable limitations on the right to “keep and bear Arms.”  In this case, all we need to do is decide what limitations are reasonable, gather up enough votes to impose them, and the constitution is satisfied.  And because what is true of one constitutional amendment is true of all – none is absolute – all we need is to gather the votes to impose reasonable restrictions on the rights that any constitutional amendment confers, and the constitutional will be satisfied.

Did you know that the constitutional protections in the Bill of Rights are all subject to reasonable limitations?  Who gets to decide what is reasonable? By what standard is reasonableness to be determined?  If our constitutional protections are all subject to limitations based on politicians’ determinations of reasonableness, arrived at solely by reference to their personal sense of reasonableness, what is the point of constitutional protections?  Doesn’t this allow politicians to brush aside any constitutional protections that stand in the way of their political objectives, by imposing “reasonable” limitations on the parts that impede their ambitions?

What’s wrong with imposing “reasonable” restrictions on the second amendment?

As to whatever each constitutional amendment protects, the amendment protects it absolutely.  The fifth amendment does not allow the government to compel a person to be a witness against himself in a criminal trial or to be deprived of life, liberty or property without due process of law in certain “reasonable” circumstances.  And the first amendment does not allow laws to infringe or curtail “the freedom of speech” in certain “reasonable” circumstances.  The question regarding the second amendment right to keep and bear arms is whether it protects against some or all aspects of what President Biden seeks to get done.  If it does, the protection it affords is absolute, no matter what the President might wish to accomplish and no matter what the first amendment might say about yelling “fire” in a crowded theater.  If not, the restrictions he seeks are not unconstitutional, whether he personally finds them reasonable or not.

What does the second amendment protect against?

The second amendment addresses one right, and one right only.  It provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  As with the protection of “the freedom of speech” in the first amendment, the question is not what limitations a majority of citizens or their political representatives might at any given moment decide are reasonable and vote into law.  The question is what the second amendment protects from infringement.  Whatever that is may not constitutionally be infringed by laws a majority believes are “reasonable” or otherwise.  However, anything outside the protection is fair game for the political realm.

This is the point of having a constitutional protection in the first place.  Instead of arguing that no constitutional amendment is absolute, President Biden should be focusing on the second amendment and persuading us that the second amendment, in particular, does not protect against the limitations he seeks — that those limitations are constitutional — and that those limitations are also reasonable as a political matter.  Because a violation of the U.S. Constitution is a violation of the supreme law of the land, the President should take great care to ensure that what he seeks to accomplish will not in fact violate the constitution.

By the way, it’s pretty clear that the second amendment isn’t there to protect our right to hunt deer, or ducks, or pheasant.  We get some idea of what the framers had in mind from Alexander Hamilton’s Federalist No. 29, Concerning the Militia.  The founders were very much against having a standing army.   But they realized the new United States of America needed to have a way of defending itself, both from outside enemies and from insurrection.  In Federalist No. 29, Hamilton advocates for a militia, everywhere, that may be called into service by the new federal government if the need were to arise and that would serve as a bulwark for the people against tyranny from the government, if such tyranny might arise.  Hamilton wrote:

“[I]t will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it.  This will not only lessen the call for military establishment, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens.”

The second amendment, with its reference to the need for a well-regulated militia for the security of a free State, appears to reflect this concern by protecting the right of “the people” to possess arms sufficient to act as a militia, and even to beat back an armed tyrant in the form of its own government if the need might arise.  This is a long way from a constitutional protection of a right to keep and bear a shotgun or a 6-round bolt or lever-action rifle to hunt deer, ducks or partridge – just saying.   Determining the scope of the second amendment protection requires reference to the framers’ intent and the purpose of the amendment.  The second amendment draws a line that the government may not cross. Where is that line? Ultimately, the U.S. Supreme Court will tell us.

The problem with the President of the United States telling us, “No amendment to the constitution is absolute. You can’t yell ‘fire’ in a crowded theater,” is that the view he espouses potentially guts every protection of every amendment to the U.S. Constitution, making each the subject of political whim.  Those who view constitutional protections as anachronistic impediments to achievement of the greater good, as determined and defined through their own enlightened sensibilities, of course, will always be fond of making the case that no constitutional amendment is absolute – that no amendment prevents them from doing their will.  Such ideas have been around for a long time (progressive dinosaurs like Woodrow Wilson and FDR entertained them) and are exactly why the nation’s founders enshrined protections in the U.S. Constitution in the first place, instead of just leaving everything to political power and whim.

Is everything you don’t want to hear the equivalent of yelling “fire” in a crowded theater?

As to the trope about shouting “fire” in a crowded theater, have you noticed how often people use it these days to equate speech they wish to eliminate to the shouting of “fire” in a crowded theater?  Everything  some people don’t want to hear is cast as some sort of danger on par with yelling “fire” in a crowded theater.  In this way, they make the case to ban it.  “Hate speech” is the equivalent of yelling “fire” in a crowded theater.  What’s hate speech?  It’s speech someone else hates.  The exception to “the freedom of speech” rule is expanded to swallow the freedom and eventually become the new rule. That’s political power as rule of law.  If you can be convinced that no other constitutional amendment is “absolute” either, exceptions will soon be found to swallow the rules enshrined by those amendments too — absolute power as the absolute rule of law.

Oh, what a seductive scheme it is that clothes itself in reasonableness. After all, what is more extreme than absolutism, and who among us are such extremists that they think that any constitutional amendment is absolute?   Whoever such extremists are, they must be located, isolated and rooted out as a danger at least as great as yelling “fire” in a crowded theater.  Let’s sic the CIA, the NSA and the FBI on them.

Actually, this nonsense is dangerous to the constitution and to the republic.  It should be rooted out.  It’s probably almost as dangerous as shouting “fire” in a crowded theater.