This line isn’t in the White House’s prepared remarks. Biden threw it in because he memorized it and keeps using it.
As a dog returns to its vomit, Biden returns to his totalitarian applause line.
Biden added that “no amendment to the Constitution is absolute. You can’t yell ‘fire’ in a crowded movie theater and call it freedom of speech. From the very beginning, you couldn’t own any weapon you wanted to own. From the very beginning of the Second Amendment existed, certain people weren’t allowed to have weapons.”
That was earlier this month.
Whoever wrote Biden’s speech did not put in the “crowded movie theater” line. They knew it was a bad idea. One of the more infamous Supreme Court rulings that anyone who cares about civil rights loathes. Not only was it overturned, but everyone on the Right and the Left hates it because it’s a dumb and dangerous cliche justifying governmental abuses of power.
But Reagan insisted on putting back, “Mr. Gorbachev, tear down this wall” into his speech, and Biden insisted on his burn the Constitution line.
Right after delivering his spiel about ghost guns and when he was supposed to blast Republicans for opposing the destruction of the 2nd Amendment, before pushing amnesty for illegal aliens, Biden went rogue and declared, “This shouldn’t be a red or blue issue, and no amendment to the Constitution is absolute. You can’t yell fire in a crowded theater.”
It’s not a red or blue issue. It’s a red, white, and blue issue.
TechDirt, well on the Left, laid into Biden.
First off, the “shouting fire” line was first said by Supreme Court Justice Oliver Wendell Holmes in Schenk v. United States. It was not a precedential statement, but rather what’s known as dicta, basically a judicial aside. Schenk was not about fires in theaters. It was about jailing someone who was morally opposed to war for handing out anti-draft brochures during World War I. If anything the statement should be seen as an example of why and how we need to better protect free speech rights, because when we don’t, and we let people aimlessly say things like “you can’t falsely shout fire in a crowded theater” it leads to jailing people for protesting war — something today we recognize as quintessential protected speech. If people knew the actual history behind the statement, it’s unlikely they’d use it.
It never had any precedential value as dicta, but even if it did, the Schenk case is no longer good law. In fact, just months later, Oliver Wendell Holmes basically changed his mind. A few years back, Thomas Healy wrote an entire book about how a bunch of his free speech supporting friends more or less convinced him that he was very, very wrong in Schenk (and a couple of other similar cases), so in the very next term, Holmes suddenly started crafting our modern concepts of 1st Amendment law, in which most speech is absolutely protected. Initially in a set of dissenting opinions (in which his colleagues on the bench continued with the original line Holmes created), Holmes realized that he was totally wrong in Schenk and began saying things like:
“I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
Biden, remember, has a law degree. Of course, he graduated at the bottom of his class and barely managed even that when he was caught plagiarizing material. And, of course, he completely lied about that also, claiming that he was an amazing student.
Brilliant law students know how “shouting fire in a crowded theater” ended. Even dumb ones do.
Biden is either extraordinarily dumb or he’s justifying the destruction of the Bill of Rights with a dumb cliche. Or maybe both.