IN 1917, Charles Schenck was convicted of encouraging American draftees bound for Europe's trenches to disobey their orders. He appealed all the way to the Supreme Court on the grounds that our constitutional right of free speech is inviolate. And he lost unanimously.
"The character of every act depends upon the circumstances in which it is done," Justice Oliver Wendell Holmes wrote for the Court. "The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic."
Schenck was imprisoned, as was his fellow Socialist, Eugene Debs, who had committed more or less the same crime, a violation of the then-new Espionage Act.
To modern Americans who consider the First Amendment the foundation of our liberties, this seems incomprehensible. After all, Jane Fonda was not arrested for broadcasting incitements to desert from Hanoi. Nor was Joan Baez, who encouraged young men to burn their draft cards. Nor have any speakers at recent antiwar rallies, not even those who accuse the Bush administration of stifling dissent and disappearing our civil liberties. As far as the government is concerned, we are free to voice our constitutionally-protected thoughts.
And yet free speech has never been more imperiled, because today it's not the government strangling the First Amendment. It's the putative guardian of that freedom--the press--which has done so by capitulating to the demands of a mob inflamed by . . . free speech. The irony is hard to bear.
IN THE PAST, our most powerful news outlets spent millions on legal fees and saw reporters imprisoned on contempt charges in order to defend the publication of news that the government argued would compromise national security--the Pentagon Papers, for example. In the recent past they have printed stories that inarguably do compromise national security, such as the recent revelations about electronic eavesdropping and CIA-run rendition programs for suspected Al Qaeda terrorists. (Justice Holmes's less famous words from Schenck: "When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.") News outlets run photos and political cartoons which offend, at one time or another, every American--particularly Christians. They eagerly publish each new batch of yesterday's-news photos from Abu Ghraib. And last week, arguing the people's right to know and the First Amendment's future, they threw a hissy fit after the vice president waited 18 hours before notifying them of a hunting accident that history will forget.
But when Muslims around the world rioted, torched embassies, killed dozens, and threatened others with fatwas in response to a Danish newspaper's cartoons of Mohammed, nearly all of our major press outlets refused to run the offending cartoons under the guise of "respect" for the "Prophet Mohammed"--whose honorific is now suddenly capitalized sans scare quotes. (Christians will have to burn down a few buildings if they want Jesus Christ referred to as the Son of God.) The New York Times, for one, was less bothered by the violence than by the cartoonists' exercise in free speech which provoked it, and to prove it the paper bravely re-ran a photo of the painting of the Virgin Mary slathered in elephant dung.
Apparently, it hasn't occurred to the media poo-bahs that the prohibition against likenesses of Mohammed should apply only to Muslims, not to the rest of us. (As Dennis Prager noted, "It's like Jews rioting when someone else eats pork.") The cartoons should've been printed and broadcast as widely as the bruised face of Cheney's hunting partner when he got out of the hospital. That would've resolved the matter overnight, by giving cover to every news outlet and reasserting the primacy of free expression in a free society.
And that's what makes the press's abject cravenness so consequential. It implies that, for all intents and purposes, we are living under sharia.
Any parent knows that giving your child everything he wants is a guarantee that he'll never stop demanding more--and reacting more angrily when he doesn't get it. Now that blowing up and beheading innocents in the name of Islam is considered less offensive than some pen-and-ink drawings, militant Islamists can pretty much take their pick of insults to be offended by--and our press will have to again respect their "sensibilities" in order to keep them from burning down the presses. So what will offend them next time? Pornography? Caricatures of bin Laden? Reports on female circumcision in Islamic Africa? Will & Grace?
Justice Holmes set the border of free speech at the line where false cries of fire would lead to panic. But after seeing the West abandon our most cherished freedom and cower in fear of retribution, Muslims now have only to falsely hear fire shouted to get what the most violent of them want--our panic.
Joel Engel is an author and journalist in Southern California.