Fire in the Substack Theater

Our publisher holds firm in the face of hackneyed criticism from the legacy media...

(Source: Substack’s A.I. Image Generator)

“I disapprove of what you say, but I will defend to the death your right to say it.”
~ Evelyn Beatrice Hall (in a letter to Voltaire)

“Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech.”
~ Silence Dogood, likely pseudonym of Benjamin Franklin.

“Free speech is the whole thing, the whole ball game. Free speech is life itself.”
~ Salman Rushdie

Joel Bowman, with today’s Note from the End of the World…

It’s the holiday season, that time of the year when we come together to give thanks and praise… and argue doggedly over hot-button issues with friends and family alike. Gotta love it!

Only, not all opinions were created equally... nor, if you read the news, should they be given the same light of day. For some, notably in the lapdog legacy media, only approved* opinions matter. (Their* approved opinions, that is.) It’s not up to you, dear reader, to decide what information you consume or eschew… it’s up to your moral betters, who pinky-promise to protect you from evil forever and ever, amen.

This week, every drone’s favorite establishment bullhorn, The Atlantic, published a predictably-titled hit piece: Substack Has a Nazi Problem.

Astute readers know the content of just such cut-n-paste (ahem…) journalism already. Insert “white supremacist” here… nod to “dog-whistle” there… add Tucker Carlson or Elon Musk’s name, just to get the algorithms all hot and bothered. Then insert the (other) N-word and pat yourself on the back for a job well done. Well, done, at least.

Sadly for many, simply seeing the words Substack collocated with Nazi enough times will be sufficient for them to turn away from the platform with all the performative disgust exhibited by the conspicuously just and righteous. Any wonder, then, when those selfsame people are surprised – shocked and disgusted, even… – by the growth and growth of this very same platform.

The truth, as you probably already know, is that The Atlantic has a Substack problem.

As fellow Stacker,

Matt Taibbi

noticed over at

Racket News

, the little decentralized platform that could has DOUBLED its number of paying readers since 2021… while dreary legacy outlets, like The Atlantic, continue to languish in a muzzled mire of their own making. That the hoary old voices in the mothball press continue to hurl abuse at Substack – and its now more than 2 million paying subscribers – ought to tell you everything you need to know about the steaming mess in their own backyards.

The latest Gallup Poll shows the inexorable decline of the once vaunted Forth Estate… assuming “trust in media” is a metric anyone in that self-congratulatory industry actually cares about.

It’s taken as read (not least by the aforementioned Substack millions) that actual journalists and independent thinkers on this platform should rush to the defense of a space where conflicting ideas and opinions are given the light of day, to be debated and scrutinized in that sanitizing sunshine of vernacular combat. (We were heartened, for example, to see this thoughtful piece by

Elle Griffin

in

The Elysian

, for example.)

Alas, many are those who simply do not have the time to plunge headlong into the sordid history of actual authoritarianism (starting with the censors themselves) and so, conflating key issues, no few fall prey to slogan headlines and thimble-depth analysis. Decent folks have lawns to mow, hair to cut, suits to tailor and pressing societal expectations of which to fall short. Thus do even the well-intentioned, to play loose with the benefit of doubt, quickly become the sorely-befuddled. (As for the mal-intentioned, they are invited to submit their curricula vitae to all the familiar, lickspittle outlets, starting with The Atlantic.)

Of course everyone is for “free” speech… when they are in agreement with the opinions being voiced. This is akin to saying, “I’m all for democracy…when my team prevails”… or “I’m not racist… except for the blacks/whites/Asians, etc.”

It’s precisely when speech makes us uneasy, uncomfortable, unsettled that otherwise staunch advocates tend to go a bit Jenga in the spinal column.

One of the most common misnomers in the whole “free speech debate,” so long as we are permitted by our would-be overlords to conduct such an editorial exercise, is the oft-conscripted “shouting fire in a crowded theater” quote. So often have we heard that weary old canard, uttered in defense of the ever-present censorial impulse… and yet, a closer look at its history reveals almost exactly the opposite lesson from that which we’re made to believe should be drawn.

And so, if we are to continue having this confounded discussion – and it seems a Sisyphean bolder we are condemned to repeatedly roll – we might at least begin with getting some basic facts on the table…at least regarding this most common, most egregious trope. More, below…

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Fire in the Theater

By Joel Bowman

“Fire! Fire! Fire!”

So shouted a prominent public speaker, in a crowded public place, during a debate concerning that most foundational of rights: freedom of speech. There was, as you might already have guessed, no such imminent conflagration on that particular day. The free speaker was referring instead to the “fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes,” as rendered in a case that is as often and confidently quoted as it is misunderstood. 

Allow us, once and for all, to foil this lame canard. 

The case in question, that of Schenck v. United States (1919), was decided in favor of The State. That much is widely known. Here is the key phrase, from Justice Holmes’s verdict:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic...

The defendants in the case, a group of Yiddish-speaking, German-American pacifists, including one Charles Schenck, were tried under President Woodrow Wilson’s 1917 Espionage Act for circulating a pamphlet urging draft-age Americans to resist induction. The incriminating pamphlet, which you can – and really should – read in full here, carried the headline:

“Long Live The Constitution Of The United States; Wake Up America! Your Liberties Are in Danger!”

All told, 15,000 copies of the one-page (front and back) publication were circulated, in which was quoted Section 1 of the 13th Amendment to the Constitution of the United States of America.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Schenck argued that the draft amounted to involuntary servitude, as “a conscripted citizen is forced to surrender his right as a citizen and become a subject.”

A Dubious Standard

In rendering his verdict, Holmes held that it was the responsibility of Congress to decide when and under what circumstances a citizen may assert his constitutionally guaranteed right to free speech. Wrote he:

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. The character of every act depends upon the circumstances in which it is done.

Thus was the dubious “clear and present danger” standard born. Holmes himself sought to redefine the standard later that same year when he dissented in Abrams v. United States (1919). The Justice felt that the court was not applying his own standard appropriately and openly questioned the government’s ability to limit free speech. But by then, the slippery standard was off and racing. It would fly for another half century.

In fact, varying versions of Holmes’s “clear and present danger” standard were applied all the way up until 1969, when the court established stronger protections for speech in the landmark case Brandenburg v. Ohio, which held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.” 

“Selective Services”

But let us return to the case of Mr. Schenck et al. for a moment. As it happened, there really was a fire, now known as World War I, and the blazing theater, that of the continental battlefield, circa 1917-19, was very much a crowded one indeed. So was it full, one might add, with all manner of substantive evils. Moreover, it was crowded with young men who were shipped there against their will, conscripted under President Wilson’s 1917 Selective Services Act, with the expressed purpose of facing a very clear and present danger. 

The only thing “in danger” as a result of Schenck’s circulation was the efforts of President Wilson, along with his sociopathic propaganda minister, Eddie Bernays, to drag an otherwise war-weary America onto a foreign battlefield, a crowded theater in which 116,516 Americans ultimately laid down their lives. 

The irony of the verdict notwithstanding, the “fire in a crowded theater” phrase has come to provide a convenient shield for anyone seeking to shutter speech they find hateful, repugnant or even merely disagreeable. 

In recent years, the amount of information that has been labeled mis- or dis-information, thereby constituting a “clear and present danger” to society... to democracy... to “our way of life”... continues to broaden and expand. Claims made during the panic of the pandemic regarding lockdowns, vaccine efficacy and even the potential origins of the virus itself – many of which have since proven true, or at least worthy of further investigation – saw professors banished, scientists ridiculed and journalists publicly excoriated in what can only be described as modern day witch hunts. And yet, it was those pointing the finger who were often found to be the ones having peddled the biggest lies of all. 

Recall “two weeks to flatten the curve” and “if you get the vaccine, you’re not gonna get sick. You’re not gonna pass it on.” (That’s POTUS, for the record.) And who can forget Joe Rogan’s “horse dewormer” and Francis Collins with his not-so-scientific “we need to orchestrate an epic takedown” of “fringe scientists” (from Stanford, Oxford and Harvard Universities). 

Absolute Relativists

And yet, in an age where hurt feelings trump inconvenient facts, where victimhood (whether actual or merely claimed) is worn with gushing pride, and where the censorial impulse marches lockstep with the will of the wounded, the very phrase “free speech” has itself been repurposed as a glowing signifier of extremism. Indeed, proponents of open dialogue and the unfettered exchange of ideas are often referred to sneeringly as “absolutists.” Some, like Tesla CEO and unabashed X (né Twitter) tease, Elon Musk, even claim the moniker for themselves. 

But the designation is as redundant as it is misleading. One is only a free speech “absolutist” in the sense that one might be said to be a “gravity absolutist” or an “abolition absolutist.” Either one observes the demonstrable effects of the former (i.e. it sucks) or one does not... usually to his sudden and impactful detriment. Likewise, one either accepts the inalienable rights of one and all to “life, liberty and the pursuit of happiness,” or one does not. Ultimately, the position of the “quasi-abolitionist” is as untenable as that of the “gravity relativist.”

To suggest that freedom of speech be abridged, even in the case of “clear and present danger,” is to shackle both speakers and listeners to the whim of an interpretive body, a mythical, omniscient majority, pray to hubris and bound to err, to whom it falls to decide what, in fact, satisfies that particular threshold. And it is at precisely that moment when speech is no longer free, but conditional. 

Such a reinterpretation of a basic right, one enshrined in the very first amendment to the Constitution of the United States, no less, represents a daring departure from long recognized notions of natural law. 

One needs only to imagine the power of censorship in their political opponents’ hands to envision the chilling effect of a one party narrative. And if free speech opponents get their way, no such imagination will be required.

Until next time…

Joel Bowman
Buenos Aires, Argentina ~ Dec. 2023