We cannot scream “fire” in a crowded theater. The well-known axiom is the most famous phrase from a Supreme Court decision written by Supreme Court Justice Oliver Wendell Holmes in 1919. The case had to do with the laws of “incitement,” which in Schenck v. United States referenced the rights of a socialist, Howard Schenck, to publish, print and hand out 15,000 fliers. He made leaflets and passed them out to fellow residents of Philadelphia urging them to resist conscription into the American army. Schenck was arrested and charged with violating the Espionage Act, which had been passed by Congress two years earlier. Schenck argued his right to petition and advocate for peace, and advise his fellow citizens to join the resistance. He argued that he had a First Amendment right to freely express his opinion. Yet, the conviction was unanimously upheld. The decision spelled out by Justice Holmes stated that Schenck’s actions undermined American society by attempting to disrupt the war effort. He yelled “fire,” and for that, he had to pay.
Incitement law got a second life during the Civil Rights movement in the 1960s. Groups left and right politically were accused of rhetorical excess. Whether it was the new Conservative movement led by 1964 presidential candidate Barry Goldwater, who famously ran the “Daisy ad,” or the counterculture, including the Black Panthers and the Yippies on the left under the leadership of Abbie Hoffman, who was responsible using “street theater” and sometimes more violent tactics in challenging the “establishment.”
Not surprisingly, by the late 1960s the Supreme Court took a new look into what constitutes illegal incitement. In 1964, a Ku Klux Klan leader named Clarence Brandenburg was prosecuted for “advocating violence.” Brandenburg had made a speech seeking “revengeance” against blacks and Jews, and those who supported them, except he didn’t call them “blacks” and used a nasty popular slur instead; yes, that one. The case reached the Supreme Court in 1969 and this time, a unanimous court modified the Schenck decision significantly. The Court created the “imminent violence” standard. Specifically, it is not enough that speech might advocate for violence, unless the speaker’s remarks cause a “clear and present danger” of “imminent lawless action.” Brandenburg’s speech was long on rhetoric, but short on results. Only a handful of people bothered to listen, and most were there in opposition. There was almost no chance that his words, no matter how ugly, would create imminent violence. Accordingly, the hate speech was protected by the First Amendment and since then almost all speech is, no matter how potentially combustible, so long as there is no threat of immediate harm.
Of course, it is not just in America that the power of incitement is debated. In Israel, it has been a topic of intense debate for the past 25 years. Critics suggest that the Jewish parties on the right were to blame for extremely coarse language regarding Yitzhak Rabin, who was prime minister of the country in the early 1990s. Some, including rabbis, called him a traitor for pursuing a peace plan that would divide the land into two nations. He was referred to as a “rodef”—a pursuer, which under Torah law would allow an individual to take preventative action to keep the rodef from acting first. When Yigal Amir, a yeshiva student, was prosecuted for Rabin’s assassination, his defense hinged upon his belief that he had a religious and legal obligation to protect the state of Israel and stop Rabin. Many said then, and still say today, that Amir was incited to violence.
In more recent times, it is the Palestinian Arabs that are accused of incitement. From lessons in their schools that yearn for “liberation” of the land from sea to sea, to the veneration of terrorists and support of their families, Israel has attempted to legislate against incitement, with mixed results.
Here in America, the limits of incitement are being debated anew. In the last several months, weeks, even days—as recent events have unfolded—the concept of incitement causing literal gunfire is very much on the daily agenda. Both Republicans and Democrats in this country have accused the other of spewing rhetoric that creates the foundation upon which violence is kindled.
Ever since Donald Trump became a serious candidate, he has been accused of using extreme rhetorical excess that critics claim incites hatred. Many people accuse President Trump, and his supporters, of using language that “signals” the worst instincts to some of his followers, who were described by his critics, including his presidential opponent, Hillary Clinton, as “deplorables.”
Two Circuit Courts have put a hold on an executive order signed by the president that attempts to restrict, at least temporarily, the immigration of people from countries that have a history of violent rhetoric and actions against the United States. Judges have cited Trump’s statements in striking down his directives, finding intent in his plan as discriminatory against Muslims, and in being so, violative of the First Amendment’s establishment clause since the judges say they restrict the rights of a class of people based on their religion. Perhaps the most interesting concession was the concession made during the argument in front of the 4th Circuit Court of Appeals that the substance of Trump’s executive order was not by itself unconstitutional, but only failed muster in light of the president’s statements and tweets. An ACLU lawyer, Omar Jadwat, conceded that if a President Hillary Clinton had enacted an executive order exactly the same as Trump signed, “it could be constitutional.” It is only by the nature of the President’s coarse language during the campaign that the Court should, according to Jadwat, and ultimately did, find that Trump’s order, now both orders, crossed the line.
But it is not just Trump and supporters who have been responsible for incendiary language and actions. In the early weeks of the new administration, we heard almost daily reports of threatened Jewish Community Centers around the nation and vandalized Jewish cemeteries. Reflexively, Trump opponents accused the president and his “alt-right” supporters of creating a climate of hate that, they said, led to a culture permitting “hate” to thrive.
It might be considered ironic. The opposition to the president may be correct that the public rhetoric leads to incitement, but it is not Trump and his followers who have engaged in violent acts, but the Democratic opposition that may have been incited. It was not even two days after President Trump was elected when the “Women’s March” was organized urging “resistance,” although it is unclear specifically what exactly they were resisting except for certain fears and expectations since the administration was not yet even formed. Many of the participants wore pink “pussy” hats, which were supposed to symbolize anger that the president was somehow a sexual offender—even if he has never been convicted of any such crime. Again, it was the expression of blunt or perhaps even crass language that was intended to be descriptive but was intentionally misconstrued as proof of past evil conduct. It may be that the accusers are more responsible for incitement than the accused.
But then something unexpected happened. It was not a Trump supporter who it turned out was arrested for multiple threats and vandalism, but rather a virulent Trump critic. A self-described journalist from St. Louis named Juan Thompson, who blamed a Jewish ex-girlfriend for framing him, was arrested for multiple crimes. This week Thompson pleaded guilty to making terroristic threats and apologized for his role in increasing the fear of the nation. A second man, a Jewish dual American-Israeli citizen, was arrested in Israel and is charged with making the bulk of the threats in the early months of the administration. While it is not clear what the motives of the second man were, it has been reported that he is suffering from physical and mental health issues.
Each summer the Public Theater in New York City stages a production of William Shakespeare in Central Park. This year’s “Shakespeare in the Park” production had an artistic twist. “Julius Caesar” featured an actor playing the role of the Roman emperor who was a dead ringer for Donald Trump. The climactic scene of the centuries-old play features Caesar getting stabbed in the back by his political supporter, Brutus. Some spectators were so shocked by the brutal depiction that several corporate sponsors pulled out of sponsorship of this year’s production. The play’s sponsors defended the current version by explaining that “not a word of dialogue has been changed.”
This week, it appears, the rhetoric has come to a head. An ardent Bernie Sanders supporter named James Hodgkinson spent several weeks in the Alexandria, Virginia, area before taking aim on a group of Republicans practicing for a charity baseball game.
Hodgkinson shot Steve Scalise, a representative from Alabama. A review of Hodgkinson’s public media showed a man who was the walking description of a clear and present danger. “Trump is a Traitor. Trump Has Destroyed Our Democracy. It’s Time to Destroy Trump & Co,” he posted on Facebook in March. Another post referred to Republicans as “the Taliban” and he joined several Facebook groups that arguably advocated violence, including “Terminate the Republican Party,” “The Road to Hell Is Paved With Republicans,” and “Join the Resistance Worldwide!!” Donald Trump has since blamed the Public Theater’s production for spurring Hodgkinson’s homicidal rage.
Even since Hodgkinson’s violent acts, some are accusing the Trump administration of raising the rhetoric in causing the violence. Even now, some people accuse the administration of responsibility—through rhetoric and policy. Some accuse Republican views opposing gun control or seeking to change healthcare legislation as making the resistance take arms, but from a legal perspective, even if true—blaming the victim rarely works.
The question we are left with is where is the line in shouting “fire” causing “fire”? When do words, in this case posts, meet the legal threshold as causing a clear and present danger of imminent harm? Society, as often occurs, needs to balance two competing, but equally essential, principles. We cherish freedom of speech and freedom of expression. On the other hand, words have meaning—and they are meant to have meaning. When that meaning is intent to harm, society in order to function needs to be provided the tools to defend itself by prosecuting people with ill intents. In other words, Oliver Wendell Holmes was imprecise. It is okay to yell “fire” in the theater if someone believes the theater is actually ablaze. But when someone yells “fire” and then strikes a match—society not only has the right, but the obligation, to respond.
By Stephen Loeb
Stephen Loeb is an attorney licensed in New Jersey and New York. He can be reached at [email protected] or 212-766-5268.
