House Minority Leader Nancy Pelosi (D–Calif.) mixed her metaphors this week while trying to argue for free speech restrictions.
During an interview with San Francisco TV station KRON4, Pelosi was asked whether the National Park Service (NPS) should deny a permit to a group of "alt-right" activists who plan to hold a demonstration Saturday in Crissy Field, a federally controlled park along San Francisco Bay. The NPS issued the permit to the Patriot Prayer group, but only after organizers agreed to ban guns and tiki torches from the rally, the A.P. reported. But Pelosi, Sen. Dianne Feinstein, and San Francisco Mayor Ed Lee have criticized that decision, calling for the NPS to police not just parks, but the speech of individuals within those parks.
Pelosi thinks the government has the authority to do that, and here's why:
"The Constitution does not say that a person can yell 'wolf' in a crowded theater," Pelosi told KRON4's Pam Moore. "If you are endangering people, you don't have a constitutional right to do that."
It would appear that Pelosi is confused about the distinction between the infamous cliché "shouting fire in a crowded theater," a line from Supreme Court Justice Oliver Wendell Holmes in the 1919 Supreme Court case Schenck v. United States, and the clichéd parable of "The Boy Who Cried Wolf," which warns about not overreacting to imaginary threats.
The whole thing is even better because, in this case, Pelosi is playing the role of the boy (or congresswoman) who cried wolf. She's calling for a reaction against a threat that hasn't materialized yet. That's what all prior restraints on speech are, of course, but she's calling for a very specific action to be taken against a very specific group of people who haven't even gathered yet, much less done anything that could be rightfully called "endangering people."
But whether we're talking about shouting "fire" in a theater or "wolf" in a park, the real issue here is that Pelosi seems to misunderstand the very metaphor she's mangling in an attempt to justify limiting speech.
Start with Schenck. That ruling doesn't mean what many people—including, apparently, one of the highest-ranking elected officials in the U.S. government—think it does. Here's the full line: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." Holmes is ruminating on the limits of constitutional protections in a theoretical way, not laying down a bright line for when the First Amendment doesn't apply. Holmes was trying to justify the conviction of two Socialist Party members who had done nothing more heinous than distributing flyers that opposed the military draft. The two claimed a First Amendment right to distribute those flyers, so Holmes concocted a limit to the First Amendment.
That ruling, including the "falsely shouting fire in a crowded theater" bit, is bad law. It's been almost universally recognized as such in the century since Holmes wrote the ruling, and the Supreme Court has taken steps to roll back its limits on free speech.
The only people who trot out the "shouting fire in a crowded theater" line these days are authoritarians grasping for excuses to censor people. That includes Pelosi, yes, but also Feinstein, who has used it to justify keeping conservative speakers off college campuses. New York City Councilman Peter Vallone tried to use it to get Twitter accounts shut down during Hurricane Sandy. Feinstein has used it as an argument for shutting down WikiLeaks; pundits have invoked it when calling for prosecuting the maker of anti-Muslim YouTube videos. "Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech," attorney Ken White, a.k.a. Popehat, wrote in a must-read takedown of the Schenck case.
The modern standard for free speech comes from the 1969 case Brandenburg v. Ohio, in which court ruled that free speech cannot be restricted "except where such advocacy is directed to inciting or producing imminent lawless action."
It's true that the alt-right group gathering in San Francisco is likely to espouse some hateful, noxious speech. When they do, they should be criticized and condemned for it, as their friends in Charlottesville were. But even if you assume they're up to no good, it's pretty clear that their asking for a permit does not rise to the level of "imminent lawless action." The National Park Service was right to award the permit. Doing otherwise would have been a violation of the First Amendment, wolves and fires notwithstanding.