Lies, the First Amendment, and the limits of free speech

The unanimous opinion in Schenck v. United States ranks high on many lists of worst Supreme Court decisions for its constraints on free speech. The defendant was Charles T. Schenck, general secretary of the U.S. Socialist Party. He and his colleagues distributed flyers opposing the draft during World War I. The court ruled that their free speech rights could be restricted, since obstruction of the draft violated the Espionage Act of 1917.

In his opinion, Justice Oliver Wendell Holmes wrote:

“Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment, may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.”

Holmes’ argument also included the idea that “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”

Mr. Schenck spent 10 years in federal prison for sedition and obstruction. Holmes went on to defend free speech rights in other cases. He argued that Mr. Schenck’s actions constituted a crime in wartime only.

Ideas about what constitutes free and false speech, and "clear and present danger" changed in subsequent years. The Schenck decision was partially overturned in 1969, but we still face many of the same questions: What are the limits to free speech? Does misinformation sometimes present a clear and present danger? When is false speech punishable, and who is best qualified to make such determinations?

Legal scholar Cass Sunstein has been grappling with these questions. His new book is Liars: Falsehoods and Free Speech in an Age of Deception. In this talk, you’ll hear how his initial inkling of how to confront lying and misinformation led to unexpected conclusions.

Cass Sunstein is a professor at Harvard University, and the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. He served as administrator of the White House Office of Information and Regulatory Affairs in the Obama administration. He serves the Biden administration as a senior counselor to the Department of Homeland Security.

Town Hall Seattle presented this event on April 1, 2021, as part of their Civics series. Town Hall’s Candace Wilkinson-Davis moderated the program.

Please note: Professor Sunstein’s dog, clearly and presently excited by the early stages of the talk, does quiet down in due time to listen in with the rest of us.

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