President Joe Biden had a point to make, and he made it in a way that will resonate with those who agree with him.
— Bad Legal Takes (@BadLegalTakes) April 29, 2021
Yes, he obviously misquoted Schenk and, to add insult to injury, missed the point. Or did he?
The fact Joe Biden keeps using “you can’t shout fire in a crowded theater” in political speeches where he’s promising things nicely illuminates what the phrase is: an affable, memorable rhetorical device devoid of specifics and impossible to use to nail anything down.
— ProbableCauseHat (@Popehat) April 29, 2021
At this point, it might be fair to argue that the “hackneyed” misquote has taken on a life of its own, no longer tied to Oliver Wendell Holmes or the putative purpose for its utterance.
Its relentless overuse is annoying and unpersuasive to most people concerned with the actual history and progress of free speech jurisprudence. People tend to cite the “fire in a crowded theater” quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying “well, some speech is protected by the First Amendment” is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment.
Ken White concludes:
This is dishonest at worst and unconvincing at best.
That was then. This is now. Biden trotted out the old nag to argue that the Second Amendment was “not absolute,” and that’s, without question, correct. But what that means is an entirely different matter. The problem, as Ken correctly points out, is that the popular attention span fails to hold long enough to reach that obvious question.
Which is not a helpful point because it’s both undisputed and useless to the discussion of what those limits are.
— ProbableCauseHat (@Popehat) April 29, 2021
We’ve reached that stage of public discussion where a vapid phrase has morphed from its original language to a generic excuse, and from there to utter pointlessness. There are two rather important questions, what are those limits, and then yet another question, who decides what those limits are.
The answer to the latter question is the Supreme Court. Not Joe Biden. Not Congress. Not you, no matter how passionately you feel about denying a constitutional right to people you hate or how persuasively Linda Greenhouse has made the case that the Supreme Court is filled with illegitimate partisan hacks who don’t count.
The Constitution is a check on the power of the government to impair the rights of individuals. It doesn’t confer rights, but protect them, and it protects them from the tyranny of the majority, the minority, and the supporters of infringement. The question is whether Biden is asking Congress to infringe on rights protected by the Constitution. Whether the right is “absolute” isn’t the question, as much as some will clutch such language to their breast.
And it may be that a proposal will come before Congress to address guns that does not infringe on the Second Amendment. Or the First, or any other amendment. Just as proponents of gun control latch onto such meaningless slogans as the president uses before Congress, so too do some guns rights activists ignore the errant paragraph in Heller that, without rationale, empowers the government to constrain rights.
The big question raised by Biden resorting to “an affable, memorable rhetorical device devoid of specifics and impossible to use to nail anything down” is whether the president is a simpleton who fails to grasp the emptiness of his rhetoric or whether the president is very well aware of his manipulative rhetoric, but knows that those who hear his words are too stupid to grasp that they are merely a facile excuse to violate the Constitution whenever the public, and their representatives, decide they feel like it. Joe Biden is hardly a simpleton, even if he plays one on TV.
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