You may, in fact, yell "fire" in a crowded theatre.

And the government isn't supposed to do a thing about it.

Governor, Vice Presidential candidate, Bill of Rights/American history ignoramus, Tim Walz

Despite the omnipresent drone of bellicose certitude from those on the left who really should know better, the U.S. Constitution does not contain exceptions they think that it does to free speech. Yelling “fire” in a crowded theatre is not excepted from protection under the First Amendment. Neither is so-called hate speech. Although there are laws prohibiting viable threats or inciting imminent violence that the government may enforce, there is simply no exception under the First Amendment for speech that is merely offensive or unpleasant. It’s just not there. For some context, it’s useful, as always, to examine the plain text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I don’t see fire, theatre, or hate in there anywhere. And try though you might, you won’t find them anywhere else in our constitution either. That’s because they aren’t there. None of this is constitutional law. It’s based on an ancillary opinion in a poorly decided SCOTUS case issued a century ago. If those using this line as a cudgel against speech of which they disapprove knew where it came from, they might have to slink off in shame—if they were capable of possessing any.

Fire in a crowded theatre comes out of a most unfortunate moment in our nation’s history. A bit over 100 years ago, President Woodrow Wilson, along with allies in Congress and others in the leading media of the era, urged passage of laws that flew in the face of the First Amendment by constraining speech in the interests of national security on the eve of a national crisis.

Does any of this sound familiar?

Two laws, the Espionage Act of 1917 and the Sedition Act of 1918, came from this effort. The Espionage Act prohibited activities related to WWI that were considered dangerous or disloyal. This included attempts to acquire defense-related information with the intent to harm the United States: code and signal books, photographs, blueprints, and other such documents with the intention of passing them to America’s enemies.

The Espionage Act also criminalized “false” statements intended to interfere with military operations, attempts to incite insubordination or obstruct the recruitment of troops, and any other “false” statement that could be perceived as granting succor to wartime enemies. It also created criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in the armed forces. The Espionage Act was expanded to constrain speech critical of WWI itself with the passage of the Sedition Act of 1918.

Despite clearly violating the First Amendment, the Supreme Court upheld convictions that resulted from both of these laws. "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic" is from Justice Oliver Wendell Holmes Jr.'s opinion regarding a 1919 case, Schenck v. United States. In this case, the Court decided that Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for creating a flyer that expressed opposition to the draft during World War I.

In his opinion relating to this case, Holmes conjured a “clear and present danger” test for speech that he deemed “substantively evil,” out of thin air, since no such provision exists anywhere in the U.S. Constitution. Several high-profile convictions, all against opponents of the war, followed, with the Supreme Court upholding many (though not all) of them. But as controversy grew over the U.S. government jailing antiwar dissidents based on their opinions, Congress repealed the Sedition Act just a few years later, in 1920.

So citing “fire in a crowded theatre” as an exception to the First Amendment that allows our government to crack down on things that you don’t like reveals several things about you, none good. The first is a superficial knowledge of American history; the second is a vacuous comprehension of the Constitution and how the Supreme Court has typically interpreted it; and the third is that you should be allowed nowhere within even the same time zone of the West Wing of the White House.

I am neither a lawyer, a historian, nor any particular expert on the U.S. Constitution—other than having read it for comprehension. So how is it that I, just a guy with a big mouth and a Substack, know that fire in a theatre is an anti-free speech canard, but a guy attempting to convince enough people to vote for him to become VP of the United States does not? Walz is only eight years younger than me, so presumably he had access to American history and civics in high school just like I did. There’s not much of an excuse for this. It’s just more evidence that our political classes are filled with not-ready-for-prime-time players.

I recall in the earliest days of the First Gulf War, back in 1991, some sentiment similar to that of 70 years earlier for the government to crack down on speech critical of the war effort. At that time, decades ago, when National Public Radio was merely sympathetic to the left instead of operating as the taxpayer-funded, wholly owned subsidiary of the DNC that it has become, legal affairs correspondent Nina Totenberg produced a very informative segment on the misunderstanding of fire in a crowded theatre, in which she laid out the same case that I, among many others, am laying out now. I’m guessing that Walz isn’t, perhaps, into much on NPR besides Prairie Home Companion.

This is America, where, when it comes to speech, you have the constitutional right to be wrong. It’s up to you and me, not the government, to correct poor speech. And the best cure for poor speech is better speech—something that progressives seem loathe to accept based upon their many and ongoing attempts to circumvent the First Amendment in order to have the government suppress speech from the likes of the rest of us that they deem unacceptable. This is a serious impediment in convincing me to vote for them.

I can hear the din and howls of protest from my friends on the left all the way up here in the quite, peaceful, cloistered location of the Chez Hackworth llama, goat, motorcycle, guitar ranch, and mountain retreat. Walz is out where the buses don’t run on this one, but Trump is still way worse. Well, perhaps so, perhaps not. I possess neither the wisdom nor patience to settle any of that. When it comes to the election in three weeks, it’s everyone for themselves as far as I’m concerned.

What I will say on that account is this: The Harris-Walz ticket portrays themselves as the adults in the room when it comes to governing. They are, according to them, saviours of democracy, the standard-bearers for our foundational ideals, completely enamored with fidelity to the laws of our land, which they are better able to defend than Trump.

I guess that my question is, How can you be any of these when you don’t understand even the very first thing in the Bill or Rights?

Associated Press and Idaho Press Club-winning columnist Martin Hackworth of Pocatello is a physicist, writer, and retired Idaho State University faculty member who now spends his time with family, riding bicycles and motorcycles, and arranging and playing music. Follow him on Twitter @MartinHackworth, on Facebook at facebook.com/martin.hackworth, and on Substack at martinhackworthsubstack.com.