The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. – Oliver Wendell Holmes

No constitutionally guaranteed right is more abused and misunderstood than the right of free speech. Free speech rights are invoked to justify hate crimes. Far more often, genuinely protected speech is decried as a violation, often with the time-worn analogy of the late great justice Oliver Wendell Holmes: “It’s like shouting fire in a crowded theater.”

I’m often inclined to take the side of free expression, even when the merits of that speech are dubious at best: I support the unfettered rights of comedians to make jokes that are offensive. I sympathize with the people behind Wikileaks, and I even understand tolerating the Westboro Baptist Church’s practices of protesting at the funerals of soldiers.

Lately, however, the state of political and popular discourse has sent me into a bit of soul searching on the matter.

In a 1989 Atlantic essay on Holmes’ fire analogy, ACLU attorney Alan Dershowitz brilliantly debunked the justice’s logic, arguing that in its original application – the conviction of a man named Charles Schenk who was handing out pamphlets urging men to refuse Army service in the run-up to World War I – the reasoning was flawed.

Schenk, head of the Philadelphia Socialist Party at the time, was asking men to think about service to the country. He was not sounding an alarm, looking to instill panic and force the men within earshot to act out of instinct, which is precisely what Holmes’ fire analogy suggests.

I agree fully with Dershowitz’ conclusion, but we are living in times when it appears people do respond to speech like they would a fire alarm. They hear words and react, without taking any time to think.

What the founding fathers who wrote the First Amendment, Oliver Wendell Holmes and even Alan Dershowitz in 1989 didn’t have to consider is the ubiquity of an online social media that can weaponize an expression by broadcasting it to a wide audience. The First Amendment was intended to protect political speech – namely criticism of government – and the press, but what about when social media makes anyone with a smartphone a de-facto publisher?

Most people can’t really handle the responsibility – Kathy Griffin’s bizarre photo with the severed head of Donald Trump is the latest example. And she’s a public figure who should, one would think, know better.

Everyone from Griffin and Bill Maher to protesting white supremacists in Portland can give one pause about the whole concept of unrestricted speech. I still support the First Amendment, but I am beginning to have my doubts that all my fellow Americans know how to exercise that right.

Pete Mazzaccaro