Justice Oliver Wendell Holmes Jr. is widely considered, along with Justice Louis D. Brandeis, to be one of the guardians of the First Amendment. He authored many of the seminal decisions that explained why our country should protect freedom of speech. For example, he first used the terminology “clear and present danger” 100 years ago to help draw the line between protected and unprotected speech in Schenck v. United States (1919).
But Holmes produced another phrase in his Schenck opinion that may be even better known — a phrase deeply enmeshed in our cultural lexicon: “shouting ‘Fire’ in a theatre.” The case involved the prosecution of Charles T. Schenck and Elizabeth Baer for distributing leaflets urging people to refuse to comply with the draft. Schenck, the general secretary of the Socialist Party, opposed U.S. involvement in World War I and believed that conscription was akin to slavery.
In the leaflets, Schenck and Baer mentioned the 13th Amendment to the Constitution, which outlawed slavery and involuntary servitude. In other words, the political dissidents believed that conscription into the armed forces amounted to a form of indentured servitude. The leaflets urged no violence and included the phrase “Assert Your Rights.”
Nevertheless, Justice Holmes affirmed the convictions for a unanimous Supreme Court. He explained:
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the 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… 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. It is question of proximity and degree. i
In other words, Justice Holmes and his colleagues found that passing out leaflets against conscription in the armed forces created a “clear and present danger” during wartime and thus was not protected under the First Amendment.
Let’s measure this against what President Trump did on January 6, 2021. He knew that there would be a crowd of his supporters in Washington, D.C., supporting his false claims that he had won the election in November 2020 and that the election had been stolen from him. He invited the crowd to go down with him to the Capitol and make their and his views known. Although he did not go with them, he knew with the hour that the crowd had broken into the Capitol and put Senators and Congressmen at risk of injury. He knew specifically that he had called out Mike Pence. He learned that Mike Pence was in danger and did nothing about it. And he did nothing to dissuade the crowd from violence in the Capitol and against members of Congress. The result was five deaths in the building.
Measure this against the crime of passing out leaflets and arguing that Congress was enslaving men through conscription. The “clear and present danger” was that the defendants might convince a significant number of men to refuse conscription and thereby undercut American war efforts. But a lot of that was based solely on guesswork. The defendants did not know that they would be successful. Nor did they know how successful they might be. Yet the fact that they might be successful with detriment to the society was enough to convict them, at least in time of war.
Trump, on the other hand, was clearly guilty of attracting the crowd to the Capitol and sending them down to the Capitol. He may not have known that he would be successful in convincing them to attack the Capitol, but that was his goal. He was happy when the crowd acted with violence and refused to try to dissuade them from their acts. What he did and did not do was a clear and present danger to the Capitol and the people in it, far more than the defendants in the case Holmes was writing about.
Then, too, a President has taken an oath of office to protect and defend the nation. I do not think that his acts must constitute a “clear and present danger” to the government which he has sworn to protect and defend. He is permitted to speak his mind, but not in a manner which would place the government in any danger. Trump could have written and published his speech without putting the government in danger. He could exercise his First Amendment rights in a manner which would not be likely to lead to violence.
The defense posed by his lawyers was clearly incorrect, and those who voted for him (many of whom were lawyers) were just doing party politics. Trump had violated his oath of office, and nothing in the constitution protected him from impeachment.