Fake News: What's free speech and what's crying "fire" in a crowded theater

There’s free speech, and there’s yelling “Fire!” in a crowded theater.

“Fake news” and some of the more awful conspiracy theories are more like the latter—and ought to be treated that way—as crimes.

We have a tradition in our country of letting people speak without fear of being censored. The First Amendment to the Constitution guarantees it. 

But freedom of speech in the United States is not absolute. You can say most anything you like, but it shouldn’t cause harm. Abraham Lincoln gets credit for this line: “My right to swing my fist ends where your nose begins.”

If one person claims a presidential candidate is running a child sex ring out of a pizza joint, and then someone else shows up with an assault weapon to clean it up—then maybe the person who spread that filth needs some jail time.

If you provide a vehicle for that kind of nastiness—like a website or a radio station that provides a voice for dangerous conspiracy theories—isn’t that handing a megaphone to the guy yelling “Fire?”

Fake news resulting in aggressive action may not be protected under the First Amendment. There is solid legal footing for the idea that these are “fighting words,” which do not qualify as privileged speech.

“Fighting words” are described by the U.S. Supreme Court in a 1942 case as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The case is Chaplinsky vs New Hampshire. 

It seems that showing up at a pizza stand with a rifle at the ready, or chopping down a Hawai`i Island or O`ahu papaya farmer’s crop, or vandalizing a historic irrigation system—those may qualify as breaches of the peace. 

Shouldn’t those who incite that kind of behavior be held liable? The First Amendment Center notes that it’s a fine line. 

“The lower courts have had a difficult time determining whether certain epithets constitute ‘fighting words.’ At the very least, they have reached maddeningly inconsistent results,” it writes.

The Supreme Court has given citizens wide leeway to use profane and abusive language, but has been less clear when the language is provocative. 

Still, the standard was established nearly a century ago, when Justice Oliver Wendell Holmes issued the 1919 unanimous Supreme Court opinion about yelling “Fire.”

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force,” Holmes wrote.

Holmes admitted that it’s not an easy call. One issue is whether speech that promotes physical harm to people is sufficient, or whether calls for damage to property are also covered.

“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree,” Holmes wrote.

I’m not an attorney. I’m an old journalist with a lifelong history of supporting the First Amendment. But in these troubled times, I’m forced to modify my support for unfettered free speech.

Some “fake news”-- telling outright lies that cause people to act in illegal ways-- that may meet the standard for unprotected speech.

© Jan TenBruggencate 2016