Mimesis Law
28 May 2020

Free Speech Tropes, LSAT Edition

September 23, 2016 (Fault Lines) – I was working through an old LSAT when I found the following question:

When a nation is on the brink of financial crisis, its government does not violate free-market principles if, in order to prevent economic collapse, it limits the extent to which foreign investors and lenders can withdraw their money. After all, the right to free speech does not include the right to shout “Fire!” in a crowded theatre, and the harm done as investors and lenders rush madly to get their money out before everyone else does can be just as real as the harm resulting from a stampede in a theatre.

The argument does which one of the following?

  1. tries to show that a set of principles is limited in a specific way by using an analogy to a similar principle that is limited in a similar way

[various wrong answers]

A screenshot of this remarkable argument made its way to the twitters, where it gave rise to debate. Some, including our curmudgeonly editor, called the testmaker out for putting something this dumb in a test for impressionable young proto-lawyers. Other people suggested the testmaker knowingly included a stupid argument; given that the question asks you to analyze it, not judge its quality, that seems at first glance like it might be possible. But what no one was willing to do was say it made a lick of sense.

First Amendment ignorance is sufficiently widespread that Popehat founder (and Fault Lines contributor) Ken White has written a number of posts designed to debunk the most common mistaken claims, or “free speech tropes.” He devotes an entire post to “fire in a crowded theater,” pointing out that it’s taken from Schenck v. United States, one of the most shamefully censorious decisions in Supreme Court history; was used to support a proposition (“government may censor wartime dissent”) that’s incompatible with modern notions of free speech as expressed in Brandenburg v. Ohio; that its author, Justice Oliver Wendell Holmes, retreated from it; and that, as here, it’s often used to underpin silly and unpersuasive arguments. And most significantly, the original read “falsely shouted fire in a crowded theater.”  I recommend you read it in full: it’s a fine piece of work, and I can’t do it justice in a couple of sentences.

In a nutshell, “fire in a crowded theater” is the kind of elementary mistake you’d expect from a Vox article. Since the LSAT has significantly higher quality assurance standards, what’s this trope doing in here?

Is it possible it was done deliberately? Yes, but it seems highly unlikely. After all, the correct answer says the argument uses “an analogy to a similar principle that is limited in a similar way.” Not “is allegedly limited.” Not “it claims is limited.” Is limited. Would anyone who knows “fire in a crowded theater” is bad First Amendment juju use it and not add a disclaimer when the argument’s done? Phrase the right answer in such a way that the First Amendment claim is implied to be true? I doubt it.

If, as seems likely, it wasn’t done deliberately, why are people who subscribe to hackneyed, mistaken views on free speech helping to write tests of lawyerly aptitude? As our editor put it:

“I’m going to go out on a limb here and say there is no answer that says “make the reader stupider.”

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  • jdgalt
    24 September 2016 at 4:58 pm - Reply

    My theory is that that question was included just in case Trigglypuff still thinks she can become an attorney.