Yesterday Nancy Pelosi granted an interview to a San Francisco television station, and the first ninety seconds are something to behold. She repeated her request that the National Park Service deny a permit to an alleged “alt-right demonstration” called Patriot Prayer. Pelosi said “not allow these elements to use a national park to spew forth their venom.” She then said that “protecting people” was the Park Service’s “first responsibility.”
When the interviewer, Pam Moore, pressed Pelosi to consider Patriot Prayer’s First Amendment rights, Pelosi responded, “The Constitution does not say that a person can yell wolf in a crowded theater. If you are endangering people, then you don’t have a constitutional right to do that.” You can watch the full interview here:
Where to begin?
First, It’s flat-out unconstitutional for the park service to deny a permit to any group simply because public officials deem the group’s speech venomous. Even if their speech is truly vile, they have the same right of access to the park as any other expressive organization.
Second, while we want law enforcement to protect people, it is also required to protect liberty. Any police force that maintains security without also protecting liberty has failed in its core constitutional function.
Third, the quote is wrong. She’s obviously referring to Oliver Wendell Holmes’s famous statement in Schenck v. United Statesthat “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Fire. Wolf. Whatever. It’s not important compared to the next point below.
Fourth, anyone who quotes Schenck is quoting bad law. In fact, it’s one of the most “odious free speech decisions in the Court’s history.” The court upheld the Espionage Act conviction of the secretary of the Socialist Party of America for writing and distributing a pamphlet opposing the draft during World War I. Schenck could never be sent to jail for this conduct today.
The proper standard is outlined in Brandenburg v. Ohio, and that case is completely silent regarding the wolf threat. Under Brandenburg, speakers can advocate violence even in front of an armed crowd unless their speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphasis added).
Finally, while the law obviously prohibits any member of the alt-right or any other group from engaging in violent acts, the Constitution does not permit the state to shut down an event simply because other people threaten the speaker. That’s an extreme form of heckler’s veto, and law enforcement is obligated to protect speakers, not silence controversial speech.
In other words, don’t ask Nancy Pelosi about the First Amendment. She has no idea what it means.