Former President Barack Obama taught University of Chicago law students about the Constitution for over a decade before swearing to uphold it. So when I recently visited the otherwise wonderful Obama Presidential Center, it was jarring to see an interactive First Amendment quiz answer its own questions incorrectly.
The timing is unfortunate. The digital “Our Five Freedoms” display understates protections for speech while the current president rallies against “fake news,” sues publishers that upset him for billions of dollars and conflates dissent with terrorism.
The quiz, which is part of a larger “Democracy 101″ exhibit, poses three hypotheticals drawn from court cases and asks visitors to guess whether the First Amendment applies. One asks whether the Constitution protects reporters publishing rumors without verification. The quiz says the Supreme Court held it doesn’t.
That’s not true. Under the seminal 1964 case New York Times v. Sullivan and cases that followed, public figures suing over false reporting must prove actual malice, meaning the journalist knew the statement was false or acted with reckless disregard for the truth. Courts have repeatedly said failure to verify rumors doesn’t clear that bar.
Even false speech is constitutionally protected. As the Supreme Court relayed in 2012 while striking down a law against falsely claiming military honors, “The remedy for speech that is false is speech that is true.”
Although journalists go to great lengths to report accurately with thorough fact-checking, they often publish rumors and unproven claims made by others, as it’s newsworthy such statements were made, even if they aren’t true.
Journalists are allowed to quote and summarize court filings, official proceedings, statements by government officials and more. That’s why you’re able to read what prosecutors say about accused criminals even before the jury has rendered its verdict, or watch commentators on news networks discuss politicians’ claims about their adversaries.
Even in cases that don’t involve public figures, disseminating rumors is only actionable if they’re false, defamatory and damaging. And even then, the Constitution still applies — it just permits limited recourse. First Amendment jurisprudence might, for example, allow liability for a defamatory statement but limit the damages the plaintiff can recover.
Another of the quiz’s hypotheticals says the Constitution doesn’t protect shouting fire in a crowded theater when there’s no fire. That’s probably the most famous First Amendment myth in existence.
The fallacy was birthed from Justice Oliver Wendell Holmes Jr.’s 1919 opinion in Schenck v. United States, which wasn’t even about shouting “fire.” The court upheld Charles Schenck’s prosecution for distributing anti-draft leaflets, concluding he presented a “clear and present danger,” which Holmes awkwardly illustrated with the fire hypothetical.
Holmes’ equation of dissent during wartime to stampedes by panicked theatergoers sounds downright Trumpian. Fortunately, the line was what lawyers call dicta — an aside with no binding force.
A half-century later in Brandenburg v. Ohio, the court adopted a more speech-protective standard: Speech can only be punished when directed at inciting imminent lawlessness and likely to result in such a situation.
That means whether shouting “fire” can be prosecuted depends on the circumstances and the shouter’s intent. Nonetheless, politicians still invoke the example often, generally to make bad analogies to justify speech restrictions that come nowhere close to meeting neither the Schenck, nor Brandenburg standards.
The Obama Center’s quiz miscites a standard that is arguably looser than either, making the claim that speech that “would create an immediate threat to public safety” is unprotected. Censors would have a field day abusing a “broad, vague generality” like that, as Justice Hugo Black famously cautioned in the Pentagon Papers case.
Firing off a right answer
The quiz’s last question is whether the Constitution protects anti-war slogans. It does, of course, and fortunately the exhibit got that right. But one out of three doesn’t cut it.
I recognize that the Obama Center can’t capture much legal nuance in its tablet-sized quiz. It’s an entry-level explainer for a broad audience, including children. It isn’t a treatise. But the errors in the quiz are closer to inversions than oversimplifications and could lead to children thinking that free speech is easily curtailed, priming them to accept censorship as normal and reasonable. That’s a gift to the Trump administration and future anti-speech officials.
It’s never been more clear that when we give the government an inch to restrict speech, it takes a mile. Obama should know that better than most — the Trump administration intimidates critics and whistleblowers by predictably building on Obama’s crackdown on classified leaks, his scuttling of legislation to protect journalist-source confidentiality, as well as legal precedents undermining that confidentiality that were also established under Obama’s presidency.
Back then Obama could claim he was burdened with weighing free speech against competing national security interests. He can’t anymore — he’s running a museum, not a war room. The Obama Center needs to update the exhibit and explain why our First Amendment errs on the side of protecting even irresponsible speech.
That’d be “fire,” as the kids say, sometimes in crowded theaters.
Seth Stern is the director of advocacy at Freedom of the Press Foundation and a First Amendment lawyer.