By Mari Matsuda
Revolution was in the air, and anti-war merged with anti-capitalism to create what the state believed was an imminent threat to its efforts in the First World War. In this context, refrains of which are coming soon to a metaphorical theater near you, Oliver Wendell Holmes came up with his famous analogy allowing limits on free speech when dissent is akin to yelling fire in that crowded theater.
What constitutes clear and present danger justifying incursions on the right to dissent? For Holmes, the distinction was imminence. Unlike most judges, he was a combat survivor. He bore witness to the imminent threat of cannon fire and fallen comrades. I read his particular concern for the effective prosecution of a declared war as tied to his biography. His imminence test does not solve my problem: what if war itself is the imminent threat? For contemporary jurists, the legacy of unjust, misbegotten, and endless wars looms large. Bodies are falling, indeed, and good citizens must ask “to what end?” My practice of democratic citizenship began when I marched in the moratorium to end the war in Vietnam.
Mari Matsuda, Dissent in a Crowded Theater, 72 SMU L. Rev. 441 (2019).