On Fires, Theaters, And Censorship: Neither Vice Presidential Candidate Understands Free Speech
Well, that was quite the end to last night’s Vice Presidential debate. While the overall debate was pretty boring (though hilarious when JD Vance flipped out and whined that the moderators had promised not to fact check him), towards the very end they had what might be the dumbest possible exchange regarding free speech.
It began with a discussion on Donald Trump’s ongoing refusal to admit that he actually lost the 2020 election. Walz noted (correctly) that this would appear to be a threat to the basic tenets of democracy. Vance tried to spin this around by claiming (falsely) that Kamala Harris “censored Americans on Facebook.”
Vance followed this up by misrepresenting some of Walz’s comments on free speech, and then Walz shot back with the (oh no) “fire in a crowded theater” line.
Both of them are wrong. And it’s important to understand why. But here’s the clip if you want to see it:
If you’d prefer to read it, here’s a transcript as well. This discussion followed a discussion regarding the January 6th attack on the Capitol. Vance was asked to respond and tried to spin the attempt to overturn the election as the same as others complaining about the loss in 2016 (which, I will note, involved no storming of any Capitol, nor any Capitol police getting beaten, nor a noose, nor chants to hang the VP).
When pushed on the denial of the results of the 2020 election, Vance tried to take a page from RFK Jr. and spin it to claim that Harris (?) is trying to censor people on Facebook:
JD Vance: Yeah, well, look, Tim, first of all, it’s really rich for Democratic leaders to say that Donald Trump is a unique threat to democracy when he peacefully gave over power on January the 20th, as we have done for 250 years in this country. We are going to shake hands after this debate and after this election. And of course, I hope that we win, and I think we’re going to win. But if Tim Walz is the next vice president, he’ll have my prayers, he’ll have my best wishes, and he’ll have my help whenever he wants it. But we have to remember that for years in this country, Democrats protested the results of elections. Hillary Clinton in 2016 said that Donald Trump had the election stolen by Vladimir Putin because the Russians bought, like, $500,000 worth of Facebook ads. This has been going on for a long time. And if we want to say that we need to respect the results of the election, I’m on board. But if we want to say, as Tim Walz is saying, that this is just a problem that Republicans have had. I don’t buy that.
Norah O’Donnell: Governor.
Tim Walz: January 6th was not Facebook ads. And I think a revisionist history on this. Look, I don’t understand how we got to this point, but the issue was that happened. Donald Trump can even do it. And all of us say there’s no place for this. It has massive repercussions. This idea that there’s censorship to stop people from doing, threatening to kill someone, threatening to do something, that’s not censorship. Censorship is book banning. We’ve seen that. We’ve seen that brought up. I just think for everyone tonight, and I’m going to thank Senator Vance. I think this is the conversation they want to hear, and I think there’s a lot of agreement. But this is one that we are miles apart on. This was a threat to our democracy in a way that we had not seen. And it manifested itself because of Donald Trump’s inability to say, he is still saying he didn’t lose the election. I would just ask that. Did he lose the 2020 election?
JDV: Tim, I’m focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?
TW: That is a damning. That is a damning non answer.
JDV: It’s a damning non answer for you to not talk about censorship. Obviously, Donald Trump and I think that there were problems in 2020. We’ve talked about it. I’m happy to talk about it further. But you guys attack us for not believing in democracy. The most sacred right under the United States democracy is the First Amendment. You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use the power of government and big tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this present political moment. I would like Democrats and Republicans to both reject censorship. Let’s persuade one another. Let’s argue about ideas, and then let’s come together afterwards.
TW: You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme court test.
JDV: Tim. Fire in a crowded theater. You guys wanted to kick people off of Facebook for saying that toddlers should not wear masks.
NO: Senator, the governor does have the floor.
TW: Sorry.
JDV: That’s not fire in a crowded theater. That is criticizing the policies of the government, which is the right of every American.
So, yeah. Both of them are wrong here. The answer to Vance’s question of “did Kamala Harris censor Americans from speaking their mind” is emphatically “no, she did not.” In his follow-up, Vance changes the formulation slightly to claim that Harris “wants to… silence people from speaking their minds.”
Now, it is true that some Democrats have proposed bills of this nature. Those bills are obviously unconstitutional and went nowhere. The Senators who backed that bill (Amy Klobuchar and Ben Ray Lujan) should be ashamed of themselves for offering it up. But I’ve seen no evidence that Harris backs such a ridiculous bill.
Of course, Vance is most likely talking about the false claims in the MAGA world that the Biden administration was in cahoots with Facebook to silence vaccine denialists. Except, that’s nonsense. Even the Trump-supporting Supreme Court said there was no evidence of that:
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.
We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.
This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.
The claim that “Kamala Harris censored” people is just not at all true. As Trump-appointee Amy Coney Barrett noted in the Murthy decision, the platforms’ moderation choices did not appear to be impacted by government requests.
But Walz’s response is also bad. While it didn’t make it into the transcript, it appears beyond just saying the “fire in a crowded theater” line, he almost claimed that “hate speech” isn’t protected under the First Amendment. He’s wrong on both of these.
Vance makes reference to some of Walz’s earlier comments, though even Eugene Volokh has suggested that, in context, Walz’s earlier comments about “misinformation and hate speech” weren’t as bad as people made them out to be, because he was narrowly talking about elections, where there can be some narrow limits.
But, still, I had hoped that someone would have pulled (non-lawyer) Tim Walz aside and explained to him the basics of the First Amendment. His comments here show that didn’t happen.
We’ve explained multiple times why the “fire in a crowded theater” line is both wrong and bad. But for Tim Walz’s sake, let’s do it again.
First, it’s wrong. It’s wrong for Walz to claim that that’s the “Supreme Court’s test.” Because it’s not. Yes, the line comes from a Supreme Court case, Schenck v. United States, but even when that case was considered good law (which hasn’t been the case since Tim Walz was five years old), it wasn’t “the test” laid out by the Supreme Court.
The “fire in a crowded theater” line was dicta (a non-binding aside) in a case that was used to jail Charles Schenck not for yelling fire, but for handing out anti-war pamphlets.
It’s also wrong because just about five years after Walz was born, we got the decision in Brandenburg v. Ohio, which effectively turned Schenck into bad law and gave us the “incitement to imminent lawless action” test, which is a level yelling fire in a crowded theater won’t often reach.
Now, some people still say that using this line is okay because it’s “colloquially true” or that it’s meaningful in noting that there are, in fact, some limits to free speech. Others point out that falsely yelling fire in a crowded theater might still lead to arrest and other charges under other theories of law.
But this is wrong. Using that line is bad because it is almost always used as a justification for taking away free speech rights from someone the utterer doesn’t like. The perfect example, of course, is the Schenck case itself.
Does Tim Walz think someone handing out anti-war flyers should be locked up? I’d hope not!
It’s also bad because it gives us no useful measure or limit on the concept. It stands in for the idea that “well, some speech is really bad.” But that’s not a useful tool to determine what is, and what is not, speech that is protected under the First Amendment, especially when the Supreme Court has given us actual tests, while simultaneously making it clear it has no appetite for changing its limited categories of unprotected speech.
As the Supreme Court ruled in 2009, it’s not in the business of declaring new categories of speech unprotected:
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.
The problem with the “fire in a crowded theater” line is that it is almost universally used to suggest some new category of speech that should not be considered protected by the First Amendment. The Supreme Court has made it pretty clear that’s not how it works.
If you want to argue that the line is merely referencing the well-documented categories of unprotected speech, it’s still bad, because we have a clearly established list of unprotected speech that they could cite just as easily, and it allows us to determine if the speech in question is, in fact, unprotected.
Either way, neither of the candidates last night understood the First Amendment issues. They were both so out of their element on this subject that not only did they both get it wrong, but both of them then missed the opportunity to respond to the other noting why they were wrong about the First Amendment.
You could perhaps argue that Walz, who is not a lawyer, shouldn’t know the specifics. But if he’s aiming to be next in line to the Presidency, he certainly should. As for Vance, he is a lawyer. But, he went to Yale Law, and, well, they’re not always so great on the First Amendment.