Legal Affairs

November|December 2004

Revolutionary Spark

When the Supreme Court decides an important First Amendment case, it rolls out the fiery rhetoric.

By Robert L. Tsai

EVERY SO OFTEN, A JURIST CONSTRUCTS A METAPHOR that captures a situation so perfectly that the fabric of the law is transformed. When this happens, language redefines how law is understood and alters the possible paths that law might take. First Amendment law includes two such revelatory moments, each employing a fire metaphor as its primary theme. Early in the 20th century, fire served as a shorthand for subversive expression, which was considered threatening and in need of control. By the 1950s, however, the language of fire had been reconfigured to embody excessive regulation of speech, potentially more dangerous than any speech it was designed to curtail. With this change of metaphor, the course of First Amendment law underwent a quiet revolution, forging an understanding of speech rights—and a language to describe them—that persists to this day.

Fire's introduction to the constitutional vernacular can be traced to the turn of the 20th century, a tumultuous time in America's history. The Bolsheviks had engineered the Russian Revolution in 1917 and, with socialism apparently ascendant in Europe, leaders in this country feared its spread across the Atlantic. Against this backdrop, Oliver Wendell Holmes coined the influential metaphor of the "spark" of incendiary speech. The "spark" was introduced in Holmes's opinion for a unanimous Supreme Court in the 1919 case of Frohwerk v. United States. Jacob Frohwerk, a socialist, had published a series of articles that questioned the legality of America's conscription laws, and the court found that these publications alone could be grounds for Frohwerk's criminal sanction. "The circulation of the paper was in quarters where a little breath would be enough to kindle a flame" of draft resistance and war obstruction, Holmes wrote. In imagining this fiery scene, Holmes fashioned a rhetorical device so persuasive that it outlived his own maturing views on the First Amendment. By the mid-1920s, Holmes began to join Louis Brandeis in dissenting opinions that staked out a broader conception of expressive rights.

Fire's status as a dominant First Amendment metaphor was strengthened in 1925. In Gitlow v. New York, the court affirmed a criminal anarchy conviction against Benjamin Gitlow for printing and circulating his Left-Wing Manifesto. Over a vigorous dissent by Holmes, Chief Justice Edward Sanford's opinion expanded the fire metaphor to license a more sweeping suppression of socialist thought than Frohwerk had contemplated. "A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration," Sanford wrote. "It cannot be said that the State is acting arbitrarily or unreasonably when . . . to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration."

Then, as now, metaphor and legal rule acted in mutually reinforcing ways. Bringing the court's reasoning to life for the citizenry, Sanford's formulation cast the speaker in the part of the hated arsonist. The state, meanwhile, played the firefighter—a uniquely American hero—who pre-emptively extinguished the threat to our legal order. The decision treated socialist speech not as the articulation of an idea but as an act of political insurgency, able to provoke more dangerous criminal acts if not arrested. In this way, fiery rhetoric justified a legal rule permitting the suppression of ideas if they tended to provoke lawlessness.

For the next four decades, jurists repeatedly described socialist gatherings, speeches, and writings as the metaphorical "sparks" of revolution or social discord. Revealing as much about the times as about the language, equally poetic fire-based gems—such as Brandeis's contention that the First Amendment liberates us from a time when "men feared witches and burnt women"—failed to win favor. The popularity of the spark can be explained only in part by the nature of the words themselves. Legal culture played a primary role in determining what language would last. Given the pro-regulation ethos that prevailed in the middle decades of the 20th century, judges understandably gravitated toward language that reinforced doctrines favoring the state.

FIRST AMENDMENT DOCTRINE UNDERWENT ITS MOST PROFOUND CHANGE in the postwar period, mirroring transformations in our national identity. Shifts in American society set in motion by World War II rippled outward into every sector of social life. These changes involved a heightened sense of economic prosperity and a fierce antitotalitarian impulse. A new fire metaphor emerged to fortify a new First Amendment jurisprudence.

In the 1950s, fear of Communist teachings kept the spark alive; one decision labeled Communist speech as a dangerous "catalyst," given the "inflammable nature of world conditions." Over time, however, the country's anti-Communist drive gave rise to a demand for expanded expressive rights. As the ethos of free speech became more robust, fire was turned into a protector of expressive liberty.

The new era of fire talk began with the 1957 case Butler v. Michigan. In their decision, the justices overturned a statute that banned the distribution of obscene or lewd literature "manifestly tending to the corruption of the morals of youth." Writing for the court, Justice Felix Frankfurter rejected the government's position that all publicly available reading material should be suitable for children. "Surely," he declared, "this is to burn the house to roast the pig."

Frankfurter was notorious for unusual references like the one he employed in Butler, and the pig-roasting metaphor is among his more ingenious. His use of this phrase was quite likely inspired by the Victorian writer Charles Lamb, whose 1923 essay A Dissertation Upon Roast Pig recounted an apocryphal tale in which an elderly Chinese man and his son discovered the art of broiling meat when they accidentally set their homestead ablaze. Soon, Lamb's tale reported, the townsfolk had merrily joined in the practice of "firing homes" in the hopes of sampling the rare treat.

The legal aphorism enlists common metaphors—fire, house, pig—in the service of a parable on the difference between long-term security and short-run comfort. With it, Frankfurter rearranged the relationships between government, speaker, and the object of fire's concern. This new metaphor cast the state as the arsonist, and the court itself as the firefighter of old. Fire was no longer equated with speech, but with state regulation of expression.

A number of civil libertarians and historians have been disappointed by Frankfurter's record on constitutional issues. Butler was somewhat anomalous, for, in many cases, the former Harvard Law School professor deferred to the executive branch when it asserted its power. But few can dispute that Frankfurter left a rich rhetorical legacy. In cases involving the right to trial by jury, to cross burning, and to the regulation of the airwaves, judges have followed his lead, employing images of the smoldering constitutional order in the service of legal principle.

When the court issued its landmark ruling applying First Amendment principles to the Internet in 1997, Justice John Paul Stevens knew which metaphor would resonate with Americans. The case of Reno v. ACLU concerned the Communications Decency Act, which banned the transmission of indecent material to minors over the Web. "In [a previous case] we remarked that the speech restriction at issue there amounted to 'burning down the house to roast the pig,' " Stevens wrote. "The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community."

And in a related case heard by the Supreme Court last term on another law restricting minors' access to sexually explicit material on the Internet, pro-speech advocates couldn't resist invoking the roast pig during oral argument. They won the case.

Each of the fire-based sayings—Holmes's version restricting speech as well as Frankfurter's favoring liberty—owed its origin and influence partly to an overpowering sense of national crisis. As we find ourselves in another such historic moment, framed by the attacks of September 11 on one side and by hostilities in Afghanistan and Iraq on the other, we might wonder whether a new metaphor will emerge, leading to another major shift in legal thought. One possibility is a narrowing of the right to engage in political advocacy in the name of national security, reminiscent of the contraction of legal safeguards during earlier times of distress. Another is a ringing vindication of liberty in the age of terror, on the theory that safety and freedom can coexist. Whatever the ultimate path of the law, it should not surprise us if the First Amendment is once again disputed and redefined in the language of fire.

Robert L. Tsai is an assistant professor at the University of Oregon School of Law. This article is adapted from "Fire, Metaphor, and Constitutional Myth-Making," in the Georgetown Law Journal.



					November\|December 2004 Revolutionary Spark When the Supreme Court decides an important First Amendment case, it rolls out the fiery rhetoric. By Robert L. Tsai EVERY SO OFTEN, A JURIST CONSTRUCTS A METAPHOR that captures a situation so perfectly that the fabric of the law is transformed. When this happens, language redefines how law is understood and alters the possible paths that law might take. First Amendment law includes two such revelatory moments, each employing a fire metaphor as its primary theme. Early in the 20th century, fire served as a shorthand for subversive expression, which was considered threatening and in need of control. By the 1950s, however, the language of fire had been reconfigured to embody excessive regulation of speech, potentially more dangerous than any speech it was designed to curtail. With this change of metaphor, the course of First Amendment law underwent a quiet revolution, forging an understanding of speech rights—and a language to describe them—that persists to this day. Fire's introduction to the constitutional vernacular can be traced to the turn of the 20th century, a tumultuous time in America's history. The Bolsheviks had engineered the Russian Revolution in 1917 and, with socialism apparently ascendant in Europe, leaders in this country feared its spread across the Atlantic. Against this backdrop, Oliver Wendell Holmes coined the influential metaphor of the "spark" of incendiary speech. The "spark" was introduced in Holmes's opinion for a unanimous Supreme Court in the 1919 case of Frohwerk v. United States. Jacob Frohwerk, a socialist, had published a series of articles that questioned the legality of America's conscription laws, and the court found that these publications alone could be grounds for Frohwerk's criminal sanction. "The circulation of the paper was in quarters where a little breath would be enough to kindle a flame" of draft resistance and war obstruction, Holmes wrote. In imagining this fiery scene, Holmes fashioned a rhetorical device so persuasive that it outlived his own maturing views on the First Amendment. By the mid-1920s, Holmes began to join Louis Brandeis in dissenting opinions that staked out a broader conception of expressive rights. Fire's status as a dominant First Amendment metaphor was strengthened in 1925. In Gitlow v. New York, the court affirmed a criminal anarchy conviction against Benjamin Gitlow for printing and circulating his Left-Wing Manifesto. Over a vigorous dissent by Holmes, Chief Justice Edward Sanford's opinion expanded the fire metaphor to license a more sweeping suppression of socialist thought than Frohwerk had contemplated. "A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration," Sanford wrote. "It cannot be said that the State is acting arbitrarily or unreasonably when . . . to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration." Then, as now, metaphor and legal rule acted in mutually reinforcing ways. Bringing the court's reasoning to life for the citizenry, Sanford's formulation cast the speaker in the part of the hated arsonist. The state, meanwhile, played the firefighter—a uniquely American hero—who pre-emptively extinguished the threat to our legal order. The decision treated socialist speech not as the articulation of an idea but as an act of political insurgency, able to provoke more dangerous criminal acts if not arrested. In this way, fiery rhetoric justified a legal rule permitting the suppression of ideas if they tended to provoke lawlessness. For the next four decades, jurists repeatedly described socialist gatherings, speeches, and writings as the metaphorical "sparks" of revolution or social discord. Revealing as much about the times as about the language, equally poetic fire-based gems—such as Brandeis's contention that the First Amendment liberates us from a time when "men feared witches and burnt women"—failed to win favor. The popularity of the spark can be explained only in part by the nature of the words themselves. Legal culture played a primary role in determining what language would last. Given the pro-regulation ethos that prevailed in the middle decades of the 20th century, judges understandably gravitated toward language that reinforced doctrines favoring the state. FIRST AMENDMENT DOCTRINE UNDERWENT ITS MOST PROFOUND CHANGE in the postwar period, mirroring transformations in our national identity. Shifts in American society set in motion by World War II rippled outward into every sector of social life. These changes involved a heightened sense of economic prosperity and a fierce antitotalitarian impulse. A new fire metaphor emerged to fortify a new First Amendment jurisprudence. In the 1950s, fear of Communist teachings kept the spark alive; one decision labeled Communist speech as a dangerous "catalyst," given the "inflammable nature of world conditions." Over time, however, the country's anti-Communist drive gave rise to a demand for expanded expressive rights. As the ethos of free speech became more robust, fire was turned into a protector of expressive liberty. The new era of fire talk began with the 1957 case Butler v. Michigan. In their decision, the justices overturned a statute that banned the distribution of obscene or lewd literature "manifestly tending to the corruption of the morals of youth." Writing for the court, Justice Felix Frankfurter rejected the government's position that all publicly available reading material should be suitable for children. "Surely," he declared, "this is to burn the house to roast the pig." Frankfurter was notorious for unusual references like the one he employed in Butler, and the pig-roasting metaphor is among his more ingenious. His use of this phrase was quite likely inspired by the Victorian writer Charles Lamb, whose 1923 essay A Dissertation Upon Roast Pig recounted an apocryphal tale in which an elderly Chinese man and his son discovered the art of broiling meat when they accidentally set their homestead ablaze. Soon, Lamb's tale reported, the townsfolk had merrily joined in the practice of "firing homes" in the hopes of sampling the rare treat. The legal aphorism enlists common metaphors—fire, house, pig—in the service of a parable on the difference between long-term security and short-run comfort. With it, Frankfurter rearranged the relationships between government, speaker, and the object of fire's concern. This new metaphor cast the state as the arsonist, and the court itself as the firefighter of old. Fire was no longer equated with speech, but with state regulation of expression. A number of civil libertarians and historians have been disappointed by Frankfurter's record on constitutional issues. Butler was somewhat anomalous, for, in many cases, the former Harvard Law School professor deferred to the executive branch when it asserted its power. But few can dispute that Frankfurter left a rich rhetorical legacy. In cases involving the right to trial by jury, to cross burning, and to the regulation of the airwaves, judges have followed his lead, employing images of the smoldering constitutional order in the service of legal principle. When the court issued its landmark ruling applying First Amendment principles to the Internet in 1997, Justice John Paul Stevens knew which metaphor would resonate with Americans. The case of Reno v. ACLU concerned the Communications Decency Act, which banned the transmission of indecent material to minors over the Web. "In [a previous case] we remarked that the speech restriction at issue there amounted to 'burning down the house to roast the pig,' " Stevens wrote. "The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community." And in a related case heard by the Supreme Court last term on another law restricting minors' access to sexually explicit material on the Internet, pro-speech advocates couldn't resist invoking the roast pig during oral argument. They won the case. Each of the fire-based sayings—Holmes's version restricting speech as well as Frankfurter's favoring liberty—owed its origin and influence partly to an overpowering sense of national crisis. As we find ourselves in another such historic moment, framed by the attacks of September 11 on one side and by hostilities in Afghanistan and Iraq on the other, we might wonder whether a new metaphor will emerge, leading to another major shift in legal thought. One possibility is a narrowing of the right to engage in political advocacy in the name of national security, reminiscent of the contraction of legal safeguards during earlier times of distress. Another is a ringing vindication of liberty in the age of terror, on the theory that safety and freedom can coexist. Whatever the ultimate path of the law, it should not surprise us if the First Amendment is once again disputed and redefined in the language of fire. Robert L. Tsai is an assistant professor at the University of Oregon School of Law. This article is adapted from "Fire, Metaphor, and Constitutional Myth-Making," in the Georgetown Law Journal.