When legislators and policymakers try to justify limits on free expression, they often turn to a familiar phrase:
“After all, you can’t yell ‘fire’ in a crowded theater.”
It’s a shorthand version of a statement first made by U.S. Supreme Court Justice Oliver Wendell Holmes Jr. in a 1919 case about resistance to the draft. Unfortunately, the widespread recognition of the Cliffs Notes phrase is not matched by a widespread understanding of its meaning.
While many use it to argue that free expression can be constitutionally curbed, it is really less about ideas than about incitement. Falsely shouting “fire” in a theater is an act designed to promote panic and place people in fear for their lives. That act is never protected by the First Amendment.
That principle was underscored last week when the U.S. Supreme Court ruled that a state government may punish the burning of a cross when the intent is to intimidate others.
In a complex decision with substantial dissents, the Supreme Court struck down a 50-year-old Virginia law banning cross-burning, but upheld the principle that states may criminalize cross-burning that is intended to intimidate others.
The Virginia law was flawed, the majority concluded, because it presumed that anyone who burns a cross is intending to intimidate someone. As the court points out, however, burning a cross can have multiple meanings, including constitutionally protected political statements.
In prosecuting a cross-burning, a state must clearly establish that the burning was intended as a threat and not just assume that anyone who burns a cross is bent on intimidation.
On one level, this new Supreme Court decision breaks little new ground. After all, the Court has consistently ruled that certain speech can constitute a crime. Freedom of speech, for example, would not prevent someone from being prosecuted for soliciting another person to help him commit a crime. Nor would the First Amendment protect an in-your-face verbal assault designed to provoke violence, so-called “fighting words.”
On the other hand, this decision may have long-term implications for symbolic speech and efforts to restrict it. It is in fact highly unusual for the Supreme Court to uphold a law designed to curb a specific type of speech. Under the First Amendment, government has some power to regulate speech, but may not favor one viewpoint over another. This requirement that all laws be “content neutral” was cited by three dissenting justices in the cross-burning case in arguing that the Virginia law singling out cross-burning was a violation of the First Amendment.
Symbolic speech has a long and important history in our nation. From the colonists burning King George III in effigy to anti-war protesters painting peace signs on American flags, Americans have used symbolic acts to convey a wide range of ideas. Clearly, freedom of speech is not limited to verbal expression.
The key question is whether the Supreme Court ruling will encourage lawmakers to craft legislation targeting other forms of symbolic speech, with or without the intent to intimidate. In his dissent in this case, Justice Clarence Thomas argued that cross-burning is so vile it can be banned entirely, regardless of the intent of the perpetrator.
“In our culture, cross-burning has almost invariably meant lawlessness and understandably instilled in its victims well-grounded fear of physical violence,” Thomas wrote.
How will this Supreme Court ruling play out? Will it, for example, fuel efforts to curb inflammatory Web sites that castigate others, or to punish display of the American flag in ways that offend or anger many Americans? Will the “crowded theater” rationale be updated to “After all, you can’t set fire to a cross?” We’ll see.
The Supreme Court’s decision does suggest, though, that any future attempts to limit symbolic speech will have to be based on genuine threats of harm to public safety and not merely on the assertion that the speech is offensive or unsettling. In the Court’s own words, “the First Amendment does not permit such a shortcut.”