On Wednesday, House Minority Leader Nancy Pelosi confirmed her reputation as one of the most addled minds of her generation, using a famously manipulated quote from Oliver Wendell Holmes and mangling it in the process to justify denying a permit for an alt-right rally in San Francisco. That rally, scheduled for Saturday, has had its permit approved.
Pelosi spoke with KRON4’s Pam Moore, who asked, “How could the Park Service justify denying that organization their free speech rights?
Pelsoi responded, “Because the Constitution does not say that a person can shout, yell wolf in a crowded theater. You are endangering people, then you don’t have a constitutional right to do that.”
Actually, Ms. Pelosi, it's "fire" in the crowded theater, not "wolf."
As Patterico writes at RedState:
The argument Pelosi is trying (and failing) to make is that violence will result from the alt-right rally. But the mere possibility that people on either side of an issue might get passionate at a rally, and that those passions could spill over into to violence, is not a valid reason to deny a permit.
To fully delineate how Holmes’ actual quote from Schenck vs. United States, "The most stringent protection would not protect a man in falsely shouting fire in a theater and causing a panic,” has been manipulated by those wishing to quash free speech, Ken White, in a comprehensive essay, explained in 2012:
Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes' fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying "well, some speech is protected by the First Amendment" is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don't have to rely on a 90-year-old rhetorical flourish to support your argument. …
White points out Holmes' quote should be seen “in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority.”
After discussing the three cases at length, he continues, “Holmes' opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that ‘obstructed’ conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the ‘fire in a theater’ quote that people so love to brandish to justify censorship.”
Holmes was not specifically hostile to speech. It's likely that his permissive approach to government censorship in the Schenck arises from his deference to the other branches of government. Deference from the judiciary is a good thing when it comes to interference in general policy. It's a dangerous thing when it comes to interpretation of the state's power over the individual. Perhaps no Holmes case demonstrates this so well — or is so widely and justifiably condemned — as Buck v. Bell, in which Holmes wrote the opinion upholding forcible sterilization under a governmental eugenics policy. That led him to another famous rhetorical flourish, to which I allude in my title:
We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
Holmes' shocking callousness in this quote is different than his language in Schenck, but his casual and colloquial approach to endorsing government power over individuals is the same. As in Schenck, he offers a catchy slogan where a meticulous and principled standard is called for.
Bear all of that in mind the next time someone name-drops Holmes and cites Schenck as part of a broad endorsement of censorship. The problem isn't that they're incorrectly citing Holmes. The problem is that they are citing him exactly right, for the vague, censorious, and fortunately long-departed "standard" he articulated. Justice Holmes, three generations of hearing your sound-bite are enough.