Essay, Research Paper: First Amendment


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In the First Amendment, it is stated that: Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people to
peaceably to assemble, and to petition the Government for a redress of
grievances. These aforementioned statements ratified by our forefathers are
commonly referred to as the freedom of expression. The freedom of expression is
not only limited to speech; it refers to all forms of exchanging ideas:
religion, press, assembly, petition, etc. In Alan M. Dershowitz's essay,
"Shouting Fire!", he boldly claims that Justice Holmes' analogy of
"shouting 'Fire!' in a crowded theater" to circulating pamphlets to
the public during wartime that contain political ideas against the draft is both
"self-deceptive or self-serving" (Dershowitz, 328). However, shouting
"Fire!" in a crowded theater does not only refer to the freedom of
speech, but to freedom of expression implied by the First Amendment. By shouting
"Fire!", an individual is implying alarm, and the indication of alarm
will ultmately cause chaos. There is no way that a shout of "Fire!" in
a crowded theater, a form of "decontextualized information" (Postman,
8), is the same as the circulation of waritme pamphlets. The idea of
"speech" is not specifically defined in the First Amendment. Due to
the absence of the authors' intention in using the word, "speech," we
are then forced to speculate on the meaning of this nebulous word. In Webster's
New World Dictionary, one will find the following: speech (spech) n. [* OE
sprecan, speak] 1 the act of speaking 2 the power to speak 3 that which is
spoken; utterance, remark, etc. 4 a talk given to an audience 5 the language of
certain people Let us interpret "speech" according to the definition
given by Webster's New World Dictionary, then "speech" should only
constitute audible sound and not also the ideas that may result from the act of
speaking. According to this theory, we are then allowed to freely say anything
that please us, including the act of shouting "Fire!" in a crowded
theater. However, we can clearly see that this is not the intention of the First
Amendment from historical evidence. It does not seem that the Supreme Court and
the public view only the act of "speaking" to be protected by the
First Amendment, for it is the act of expressing ideas that concerns them. Even
Justice Holmes announced that "[t]he most stringent protection of free
speech would not protect a man in falsely shouting fire in a theater, and
causing a panic. It does not even protect a man from injunction against uttering
words that may have all the effect of force" (Dershowitz, 325). Which then
leads us to believe that it is the expression of ideas that leads "directly
to serious harm" (Dershowitz, 328) to the public that acts as a violation
of the First Amendment. However, each individual's interpretation of what may
lead directly to serious harm may be different. Some individuals'
interpretations of what cause serious harm are more liberal, while others are
more conservative: I may find the circulation of pamphlets containing radical
political views to be quite detrimental to wartime effort, while others may find
that to be virtually harmless. In recognizing that the government does indeed
have the right to censor "expressions [that] may lead directly to serious
harm" (Dershowitz, 328), Dershowitz implies that there is a hidden status
quo, or norm, that individuals within an interpretive community use as a
guideline to determine what constitutes extreme disorder. It is then left up to
the Supreme Court to act as the absolute authority to set these guidelines for
the members of the interpretive community. In order for chaos to occur, there
must be people to interpret and interact with ideas that are proposed. If one
were to shout "Fire!" in an empty theater, then there would be no
chaos resulting from that action; no one would be there to interpret the shout
of "Fire!" as a potential alarm. As Justice Holmes pointed out in
Schenck v. United States, "the character of every act depends upon the
circumstances in which it is done" (Dershowitz, 325). However, it was most
unfortunate for Schenck to be imprisoned for distributing his political
pamphlets, for it was not the intention of these pamphlets to cause chaos:
"nothing in the pamphlet suggested that the draftees should use unlawful or
violent means to oppose conscription" (Dershowitz, 324). Although the
Schenck pamphlets did not directly cause chaos, it was its potential to cause
chaos that led to Schenck's sentence, for "the Court found, that the intent
of the pamphlets' 'impassioned language' was to 'influence' draftees to resist
the draft" (Dershowitz, 324). Instead of punishing actions that lead
"directly to serious harm," we see a scenario that is removed from
this direct impact. Actions that cause unnecessary panic should be punished:
"calling in a false bomb threat; dialing 911 and falsely describing an
emergency; making a loud, gun-like sound in the presence of the President;
setting off a voice-activated sprinkler system by falsely shouting 'Fire!'"
(Dershowitz, 328). However, we do not see the same correlation to shouting
"Fire!" in a crowded theater in Schenck's case. It was most
inappropriate for Justice Holmes to have analogized the distribution of
Schenck's pamphlets to shouting "Fire!" in a crowded theater, for the
act of distributing these pamphlets does not directly lead to chaos. In his
book, Amusing oOurselves to Death, Neil Postman explains why the distribution of
information in printed form requires more mental exertion than other mediums,
for: In reading, one’s responses are isolated, one’s intellect thrown back
on its own resources...To engage the written word means to follow a line of
thought, which requires considerable powers of classifying, inference-making and
reasoning. It means to uncover lies, confusions, and overgeneralizations, to
detect abuses of logic and common sense. It also means to weight ideas, to
compare and contrast assertions, to connect one generalization to another.
(Postman, 50-51) The recipients of the Schenck pamphlets were invited to
interpret the ideas that are embedded within the text, then take action upon
these ideas if they felt inclined to do so. Unlike shouting "Fire!" in
a crowded theater, the results that stem from the interpretation of the
pamphlets will be more diverse than that of hearing a shout of "Fire!"
in a crowded theater. In hearing a shout of "Fire!" in a crowded
theater, we are conditioned to run for our lives due to the potential danger it
may involve. Rarely do we hesitate and analyze the validity in the shout of
"Fire!" in a crowded theater due to the risk involved in our decision
making. The analogy of distributing the Schenck pamphlets to shouting
"Fire!" in a crowded theater is ludicrous for it is not "an
automatic stimulus to panic" (Dershowitz, 327). A shout of
"Fire!" in a crowded theater is merely a verbal alarm, and not speech,
for there is a very small amount of (if any) information being conveyed in the
making of this "clang sound": The man who shouts Fire! in a crowded
theater is neither sending a political message nor inviting his listeners to
think about what he has said and decide what to do in a rational, calculated
manner. On the contrary, the message is designed to force action without
contemplation. The message Fire! is directed not to the mind and the conscience
of the listener but, rather, to his adrenaline and his feet. It is a stimulus to
immediate action, not thoughtful reflection. (Dershowitz, 325) Our survival
instincts would cause us to run out of the crowded theater if someone were to
shout "Fire!"; this priority of self-preservation causes chaos. The
ideas embedded within the First Amendment are left open for interpretation by
its audience due to the ever changing nature of society. It is then the
different interpretations of the First Amendment that causes disagreement among
individuals in justifying their case. In the case of Schenck v. United States,
however, Justice Holmes' analogy of shouting "Fire!" in a crowded
theater to the distribution of the political pamphlets was a poor interpretation
of the ideas behind the First Amendment. Although "not a single recipient
of the Schenck pamphlet is known to have changed his mind after reading it"
(Dershowitz, 326), Schenck was convicted because "the pamphlet created a
clear and present danger of hindering the war effort" (Dershowitz, 325). In
no way does the scenario of the Schenck pamphlet echo that of shouting
"Fire!" in a crowded theater, for it does not directly lead to
unnecessary chaos and panic. Inherent in the reading of the pamphlets involves
"a sophisticated ability to think conceptually, deductively and
sequentially; a high valuation of reason and order; an abhorrence of
contradiction; a large capacity for detachment and objectivity; and a tolerance
for delayed response" (Postman, 63). If indeed the Schenck pamphlets should
be analogized to shouting "Fire!" in a crowded theater, then should
the writers of the National Inquirer, Saturday Night Live, David Letterman, etc.
also be convicted for misinformation and falsely portraying public figures?
Fortunately, we are now able to realize the lunacy of Justice Holmes'
"Fire!" analogy and reassess the ideas behind the First Amendment.

Dershowitx, Alan. "Shouting Fire!." The Best American Essays,
College Ed. Robert Atwan, ed. Boston: Houghton Mifflin Company, 1998. 323-329.
Postman, Neil. Amusing Ourselves to Death. New York: Penguin Books, 1986.

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