The Authoritarian Jurisprudence of Oliver Wendell Holmes

Three generations of quoting him are enough.

Popehat explains, in deep detail, why you should think twice before quoting Oliver Wendell Holmes' old chestnut about shouting "fire" in a crowded theater.

Comments

[Caleb Turberville]

Wait, what type of theaters was Holmes referring to? What about home theaters?

[Fist of Etiquette]

If you're wasting a home theater by watching The Apprentice on it then you deserve to get compulsorily sterilized.

[Doctor Whom]

When people quote Holmes to me, I quote that part of his legacy back. You should see them squirm.

[Episiarch]

This is relevant.

[nicole]

I was going to react in horror at your posting something relevant. Then I clicked the link.

[Episiarch]

I didn't mean to scare you, nicole.

[protefeed]

You have the right to yell "fire" in a crowded theater. Other people panicking despite a complete lack of evidence of fire is not your responsibility.

For example:

Epi: "What does that sign by the exit say?"

Me: "FIRE!"

I would argue that even a malicious intent in yelling "fire" is not sufficient to bring criminal charges.

You also have the right to yell "Fuck the TSA" in a line leading to a Rapey-Scanner.

Your rights are WAAAY broader than the statists would like you to believe.

[rts]

Your rights are WAAAY broader than the statists would like you to believe.

Well, yeah, since most believe that your rights are granted by the state.

[Fluffy]

In addition, I think that to criminalize shouting "Fire!" in a crowded theater, the state would have to prove beyond a reasonable doubt that I did not actually believe the theater was on fire.

And that is something I do not believe they can do, without introducing evidence of other elements of a conspiracy to create the panic, in which case they wouldn't really be prosecuting me just for that speech.

[Enjoy Every Sandwich]

That rotten old quote will never die. It will be used as long as the U.S. pretends to be governed by the Constitution. It is anchored in the concept that is used to circumvent all of the amendments in the Bill of Rights: that "compelling state interest" is the trump card that can override all rights regardless of what the Bill of Rights says.

[VG Zaytsev]

Oliver Wendell Holmes was the all time favorite SCOTUS Justice of a certain Austrian corporal that went on to flesh out OWH's ideology.

[Caleb Turberville]

Gustav Schwarzenegger?

[wef]

As also posted at Popehat comments, but always welcome, the Hitchens discussion of "shouting fire" :

http://www.youtube.com/watch?v=jyoOfRog1EM

[widget]

I shout "Free popcorn" in a crowded theater when I can't find two adjoining seats. Ms. widget scolds me at first for this, at first.

[Caleb Turberville]

Jim Morrison: felon?

[Jersey Patriot]

Three generations of free speech is enough.

[robc]

OWH was, hands down, the worst Supreme Court Justice.

[widget]

Hitchens:

"Don't take refuge in the false security of consensus."

Wow.

[widget]

It would have been better without the "false".

[Romulus Augustus]

He also got it ass-backwards when he said "Taxes are what we pay for a civilized society." As libertarians know, if we were a civilized society, we would pay for "stuff" we need and not for stuff we didn't need, and have no desire to compel others to pay for our stuff.

[protefeed]

In addition, I think that to criminalize shouting "Fire!" in a crowded theater, the state would have to prove beyond a reasonable doubt that I did not actually believe the theater was on fire.

And that is something I do not believe they can do, without introducing evidence of other elements of a conspiracy to create the panic, in which case they wouldn't really be prosecuting me just for that speech.

The state would also have to prove a lot of other things, such as that you know with a reasonable certainty that the particular mix of people in that theater would panic and cause mayhem ...

And that the First Amendment does not mean what the actual language says about "no law" ...

[The Late P Brooks]

How many generations of imbecilic Supreme Court Justices (and rulings) are enough?

[protefeed]

He also got it ass-backwards when he said "Taxes are what we pay for a civilized society."

"Taxation is the price we pay for failing to build a civilized society."

http://www.independentamerican.....d-society/

[RFID]

As I said in another thread, I think there should be a "Holmes's rule" in the similar vein of "Godwin's law" so that the first person who mentions Holmes in any sort of free speech argument automatically loses.

[JeremyR]

Not to mention, he was in favor of forced sterilization (he wrote the ruling in the infamous Buck vs Bell).

"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, 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."

Why his opinion on matters should be taken seriously is beyond me. The guy was a fascist at his core.

[Homple]

Herewith H L Mencken on Mr. Justice Holmes:

http://www.unz.org/Pub/AmMercury-1930may-00122

An extract:

'There is even more surprising stuff in the opinions themselves. In three Espionage Act cases, including the Debs case, one finds a clear statement of the doctrine that, in war time, the rights guaranteed by the First Amendment cease to have any substance, and may be set aside by any jury that has been sufficiently alarmed by a district attorney itching for higher office. In Fox v. the State of Washington, we learn that any conduct "which shall tend to encourage or advocate disrespect for the law" may be made a crime, and that the protest of a man who believes that he has been jailed unjustly, and threatens to boycott his persecutors, may be treated as such a crime. In Moyer v. Peabody, it appears that the Governor of a state, "without sufficient reason but in good faith," may call out the militia, declare martial law, and jail anyone he happens to suspect or dislike, without laying himself open "to an action after he is out of office on the ground that he had no reasonable ground for his belief." And, in Weaver v. Palmer Bros. Co. there is the plain inference that in order to punish a theoretical man, A, who is suspected of wrong-doing, a State Legislature may lay heavy and intolerable burdens upon a real man, B, who has admittedly done no wrong at all.'