AT A JULY hearing of the House Select Subcommittee on the Weaponization of the Federal Government, Republican members focused on social media companies’ moderation of largely conservative viewpoints and accused the Biden administration of working hand-in-hand with tech companies to censor critics.
The First Amendment generally restricts the actions of the government and not purely private decisions of companies. A spirited, and unsettled, debate is emerging nationwide as to the extent of government pressure on platforms that should render a moderation decision a First Amendment violation.
But some members of the Weaponization Subcommittee sought to minimize the concerns about moderation without engaging in a nuanced discussion about government pressure, or “jawboning.”
“I’m an attorney by training, and one of the things I learned very early on in constitutional law is that no right given to the people of the United States is absolute,” Rep. Linda Sánchez (D–Calif.) said when asking a witness about the harms of health misinformation. “And that includes the right to free speech because you do not have the right to shout fire in a crowded theater, because it could produce harm and death of people by being false.”
Fire in a crowded theater. If you’re discussing whether U.S. law should protect allegedly false speech, there is a good chance that someone will say these five words. That person likely wants the government to regulate harmful speech and justifies it by pointing out that the U.S. Supreme Court said that you can never yell “fire” in a crowded theater.
Like much of the speech that those invoking “fire in a crowded theater” are trying to prohibit, the statement is incorrect because sometimes you yell “fire” in a crowded theater without
