Ambiguity And Confusion From The First Amendment

Essay, Research Paper

Ambiguity and Confusion from the First Amendment

In the First Amendment, it is stated that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably to assemble, and to petition the Government for a redress of grievances.

These aforementioned statements ratified by our forefathers are commonly referred to as the freedom of expression. The freedom of expression is not only limited to speech; it refers to all forms of exchanging ideas: religion, press, assembly, petition, etc. In Alan M. Dershowitz’s essay, “Shouting Fire!”, he boldly claims that Justice Holmes’ analogy of “shouting ‘Fire!’ in a crowded theater” to circulating pamphlets to the public during wartime that contain political ideas against the draft is both “self-deceptive or self-serving” (Dershowitz, 328). However, shouting “Fire!” in a crowded theater does not only refer to the freedom of speech, but to freedom of expression implied by the First Amendment. By shouting “Fire!”, an individual is implying alarm, and the indication of alarm will ultmately cause chaos. There is no way that a shout of “Fire!” in a crowded theater, a form of “decontextualized information” (Postman, 8), is the same as the circulation of waritme pamphlets.

The idea of “speech” is not specifically defined in the First Amendment. Due to the absence of the authors’ intention in using the word, “speech,” we are then forced to speculate on the meaning of this nebulous word. In Webster’s New World Dictionary, one will find the following:

speech (spech) n. [* OE sprecan, speak] 1 the act of speaking 2 the power to speak 3 that which is spoken; utterance, remark, etc. 4 a talk given to an audience 5 the language of certain people

Let us interpret “speech” according to the definition given by Webster’s New World Dictionary, then “speech” should only constitute audible sound and not also the ideas that may result from the act of speaking. According to this theory, we are then allowed to freely say anything that please us, including the act of shouting “Fire!” in a crowded theater. However, we can clearly see that this is not the intention of the First Amendment from historical evidence. It does not seem that the Supreme Court and the public view only the act of “speaking” to be protected by the First Amendment, for it is the act of expressing ideas that concerns them. Even Justice Holmes announced that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from injunction against uttering words that may have all the effect of force” (Dershowitz, 325).

Which then leads us to believe that it is the expression of ideas that leads “directly to serious harm” (Dershowitz, 328) to the public that acts as a violation of the First Amendment. However, each individual’s interpretation of what may lead directly to serious harm may be different. Some individuals’ interpretations of what cause serious harm are more liberal, while others are more conservative: I may find the circulation of pamphlets containing radical political views to be quite detrimental to wartime effort, while others may find that to be virtually harmless. In recognizing that the government does indeed have the right to censor “expressions [that] may lead directly to serious harm” (Dershowitz, 328), Dershowitz implies that there is a hidden status quo, or norm, that individuals within an interpretive community use as a guideline to determine what constitutes extreme disorder. It is then left up to the Supreme Court to act as the absolute authority to set these guidelines for the members of the interpretive community.

In order for chaos to occur, there must be people to interpret and interact with ideas that are proposed. If one were to shout “Fire!” in an empty theater, then there would be no chaos resulting from that action; no one would be there to interpret the shout of “Fire!” as a potential alarm. As Justice Holmes pointed out in Schenck v. United States, “the character of every act depends upon the circumstances in which it is done” (Dershowitz, 325). However, it was most unfortunate for Schenck to be imprisoned for distributing his political pamphlets, for it was not the intention of these pamphlets to cause chaos: “nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription” (Dershowitz, 324). Although the Schenck pamphlets did not directly cause chaos, it was its potential to cause chaos that led to Schenck’s sentence, for “the Court found, that the intent of the pamphlets’ ‘impassioned language’ was to ‘influence’ draftees to resist the draft” (Dershowitz, 324).

Instead of punishing actions that lead “directly to serious harm,” we see a scenario that

is removed from this direct impact. Actions that cause unnecessary panic should be punished:

“calling in a false bomb threat; dialing 911 and falsely describing an emergency; making a loud, gun-like sound in the presence of the President; setting off a voice-activated sprinkler system by falsely shouting ‘Fire!’” (Dershowitz, 328). However, we do not see the same correlation to shouting “Fire!” in a crowded theater in Schenck’s case. It was most inappropriate for Justice Holmes to have analogized the distribution of Schenck’s pamphlets to shouting “Fire!” in a crowded theater, for the act of distributing these pamphlets does not directly lead to chaos. In his book, Amusing oOurselves to Death, Neil Postman explains why the distribution of information in printed form requires more mental exertion than other mediums, for:

In reading, one?s responses are isolated, one?s intellect thrown back on its own resources…To engage the written word means to follow a line of thought, which requires considerable powers of classifying, inference-making and reasoning. It means to uncover lies, confusions, and overgeneralizations, to detect abuses of logic and common sense. It also means to weight ideas, to compare and contrast assertions, to connect one generalization to another. (Postman, 50-51)

The recipients of the Schenck pamphlets were invited to interpret the ideas that are embedded within the text, then take action upon these ideas if they felt inclined to do so. Unlike shouting “Fire!” in a crowded theater, the results that stem from the interpretation of the pamphlets will be more diverse than that of hearing a shout of “Fire!” in a crowded theater. In hearing a shout of “Fire!” in a crowded theater, we are conditioned to run for our lives due to the potential danger it may involve. Rarely do we hesitate and analyze the validity in the shout of “Fire!” in a crowded theater due to the risk involved in our decision making. The analogy of distributing the Schenck pamphlets to shouting “Fire!” in a crowded theater is ludicrous for it is not “an automatic stimulus to panic” (Dershowitz, 327).

A shout of “Fire!” in a crowded theater is merely a verbal alarm, and not speech, for there is a very small amount of (if any) information being conveyed in the making of this “clang sound”:

The man who shouts Fire! in a crowded theater is neither sending a political message nor inviting his listeners to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The message Fire! is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection. (Dershowitz, 325)

Our survival instincts would cause us to run out of the crowded theater if someone were to shout “Fire!”; this priority of self-preservation causes chaos.

The ideas embedded within the First Amendment are left open for interpretation by its audience due to the ever changing nature of society. It is then the different interpretations of the First Amendment that causes disagreement among individuals in justifying their case. In the case of Schenck v. United States, however, Justice Holmes’ analogy of shouting “Fire!” in a crowded theater to the distribution of the political pamphlets was a poor interpretation of the ideas behind the First Amendment. Although “not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it” (Dershowitz, 326), Schenck was convicted because “the pamphlet created a clear and present danger of hindering the war effort” (Dershowitz, 325). In no way does the scenario of the Schenck pamphlet echo that of shouting “Fire!” in a crowded theater, for it does not directly lead to unnecessary chaos and panic. Inherent in the reading of the pamphlets involves “a sophisticated ability to think conceptually, deductively and sequentially; a high valuation of reason and order; an abhorrence of contradiction; a large capacity for detachment and objectivity; and a tolerance for delayed response” (Postman, 63). If indeed the Schenck pamphlets should be analogized to shouting “Fire!” in a crowded theater, then should the writers of the National Inquirer, Saturday Night Live, David Letterman, etc. also be convicted for misinformation and falsely portraying public figures? Fortunately, we are now able to realize the lunacy of Justice Holmes’ “Fire!” analogy and reassess the ideas behind the First Amendment.

Dershowitx, Alan. “Shouting Fire!.” The Best American Essays, College Ed. Robert Atwan, ed. Boston: Houghton Mifflin Company, 1998. 323-329.

Postman, Neil. Amusing Ourselves to Death. New York: Penguin Books, 1986.

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