FREE ESSAY ON AMBIGUITY AND CONFUSION FROM THE FIRST AMENDMENT

AMBIGUITY AND CONFUSION FROM THE FIRST AMENDMENT

Ambiguity and Confusion from the First Amendment
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.
Bibliography
Bibliography
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.