Yes, Tim Walz, You Can Shout 'Fire' In A Crowded Theatre

During Tuesday's debate, Tim Walz fumbled a key moment by misunderstanding the First Amendment

It would be nice if everyone on a presidential ticket understood how the First Amendment works, but unfortunately, that seems to be too much to ask of Minnesota Gov. Tim Walz. During an exchange about censorship and threats to Democracy—springing, inexplicably, from Sen. J.D. Vance (R–Ohio) dodging a question about whether former President Donald Trump lost the 2020 election—Walz made two major free speech fumbles. He claimed there is no First Amendment right to "hate speech" and repeated the myth that you can't shout "fire" in a crowded theatre.

When Vance pivoted to correctly pointing out that Walz had previously "said there's no First Amendment right to misinformation," Walz interjected, adding "or threatening, or hate speech." 

But Walz is wrong. While threats aren't protected by the First Amendment, "hate speech" most certainly is. Speech that is merely offensive—and not part of an unprotected category like true threats or harassment—has full First Amendment protection. Walz's mistaken belief that it seems intuitively impossible for Americans to express offensive or hateful ideas reveals a censorious nature, which is extremely troubling for someone seeking the vice presidency. 

"The Supreme Court of the United States has repeatedly rejected government attempts to prohibit or punish hate speech," reads a rundown on hate speech from the Foundation for Individual Rights and Expression, a First Amendment group. "The First Amendment recognizes that the government cannot regulate hate speech without inevitably silencing the dissent and dialogue that democracy requires. Instead, we as citizens possess the power to most effectively answer hateful speech—whether through debate, protest, questioning, laughter, silence, or simply walking away."

But that wasn't Walz's only error. A few seconds later, he said "You can't yell 'fire' in a crowded theater. That's the test. That's the Supreme Court test." Again, this is incorrect. It's a common misconception that shouting "fire" in a crowded theatre isn't protected by the First Amendment—a myth that originates from a hypothetical used in Justice Oliver Wendell Holmes' 1919 Supreme Court opinion in Schenk v. United States. 

Holmes wrote that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." Not only was this a purely hypothetical example used to explain Holmes' opinion, but the ruling itself was largely overturned 50 years later in Brandenburg v. Ohio.

"The real problem with the 'fire in a crowded theater' discourse is that it too often is used as a placeholder justification for regulating any speech that someone believes is harmful or objectionable," Naval Academy professor Jeff Kosseff wrote for Reason last year. "In reality, the Supreme Court has defined narrow categories of speech that are exempt from First Amendment protections and set an extraordinarily high bar for imposing liability for other types of speech."

The worst part about all this for Walz is that his sloppy, revealing answers on free speech derailed what had been one of his strongest moments in the debate. The subject only came up in the first place because Vance, in an attempt to sidestep a question about Trump's election loss and the possibility of challenging future results, argued that big-tech censorship and government jawboning pose a bigger threat to democracy than Trump's election denial. 

"This was a threat to our democracy in a way that we had not seen. And it manifested itself because of Donald Trump's inability to say, he is still saying he didn't lose the election. I would just ask that. Did he lose the 2020 election?"

Walz was making a good point and asking an important question. That is, until he revealed what he really thinks about the First Amendment.