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Shouting Covid in a Crowded Theater


War benefits Leviathan. Abstract opposition allows leaders to seize power amid the fear of the unknown. These two forces converged in the response to Covid-19, resulting in a concentration of power and an assault on constitutional liberties. 

Over the last two years, the Biden Administration has used wartime strategies to suppress freedom of speech. President Trump first used this tactic during his reelection campaign when he declared that the virus turned him into a “wartime president.”

Upon taking office, President Biden employed familiar wartime rhetorical ploys: lying to his constituents, dividing the public, baselessly accusing opponents of disloyalty to their countrymen, and punishing dissent in disregard for the First Amendment. 

His vaccination initiatives typified this strategy.

He repeatedly misled the public to encourage conformity. In July 2021, he told a crowd in Ohio, “You’re not going to get COVID if you have these vaccinations.”

He attacked Americans who he deemed insufficiently loyal to his Covid-wartime efforts, chastising those who were hesitant to receive mRNA shots that went to market under emergency use authorization.

“We’ve been patient, but our patience is wearing thin,” Biden told the unvaccinated in September 2021. “And your refusal has cost all of us.” 

Most importantly, he used the crisis as a pretext to strip citizens of their rights, a familiar pattern in American history.

While Covid was a novel threat to many Americans, the political response was reminiscent of the political power grabs that stripped citizens of their Constitutional rights during World War I.

In both eras, separated by a century of American history, Washington’s Leviathan seized its citizens’ First Amendment rights by slandering dissent as false and implying that it endangered the public. 

Fire in the European Theater

Less than 6 months after narrowly winning reelection under the campaign banner “He Kept Us Out of War,” Woodrow Wilson entered the United States into what he called a “war for democracy and human rights.” He demanded of his countrymen, “We must all speak, act, and serve together!” 

President Wilson’s demand for conformity was not rhetorical; he swiftly signed the Espionage Act of 1917 and the Sedition Act of 1918 into law, making it a crime to use speech or writing in ways disloyal to the government.

The Supreme Court upheld Wilson’s censorious enactments in a series of cases at the end of his presidency. The fatuous and tyrannical orders are now remembered for Justice Oliver Wendell Holmes Jr.’s slanderous and misleading example of “falsely shouting fire in a crowded theater.” 

Justice Holmes invoked the “fire” phrase to uphold the conviction of Charles Schenck for distributing leaflets in Philadelphia, the home of the Declaration of Independence and the Constitutional Convention. Schenck’s flyers read: “Long Live The Constitution Of The United States; Wake Up America!” across the top. 

Schenck argued that Wilson’s military draft violated the Thirteenth Amendment’s prohibition against involuntary servitude, and he urged men to resist the draft peacefully. He was convicted of conspiracy to violate the Espionage Act. The Supreme Court upheld his sentence, and Justice Holmes compared his pamphleteering to “falsely shouting fire in a crowded theater.”

In the fog of war, opposing intervention in a conflict that killed 20 million people and injured 20 million more earned a Progressive Era stamp of treason, a precursor to the label of “misinformation.” 

The rhetorical tactic was familiar to today’s censorship ploys. 

First, Holmes’s use of “falsely” indicated that Schenck was lying; however, there was fire in a very crowded theater. While Schenck handed out leaflets in Philadelphia in August 1917, the Third Battle of Ypres entered its second month, resulting in over a half a million deaths. Just one year earlier, German and French troops suffered a million casualties in the Battle of Verdun. 

Second, Holmes implied that Schenck’s leaflets presented an imminent danger that could unjustly stir a violent commotion. The “fire” example presents the image of a malicious actor causing a stampede. Yet, Schenck’s leaflets advocated non-violent resistance at home and opposed entering the sanguinary conflict abroad.

“You must do your share to maintain, support, and uphold the rights of the people of this country,” Schenck wrote. While the dogs of war claimed millions of lives abroad, Wilson summoned them to erode domestic freedoms.

In 1918, Wilson’s government sentenced labor and political leader Eugene Debs to ten years in federal prison for delivering an anti-war speech. Debs was imprisoned for telling his followers, “You need to know that you are fit for something better than slavery and cannon fodder.” Again, the Court supinely affirmed the conviction as “wartime powers” made a mockery of the First Amendment. 

Debs ran for President in 1920 confined to his prison cell, winning nearly a million votes. President Wilson referred to him as a “traitor to his country” for his opposition to the war and vowed “he will never be pardoned during my administration.” 

In in the pursuit of Mr. Wilson’s “war for democracy and human rights,” the government jailed a prominent political opponent (Debs), immigrants (Abrams v. United States), pamphleteers (Schenck), and countless others for using their constitutionally guaranteed right to freedom of speech. 

Chicago Law Professor Ernst Freund, author of The Police Power, chastised the assaults on the First Amendment at the time. In response to Schenck, he wrote that Justice Holmes took “the very essentials of the entire problem for granted.” He argued that Holmes failed to make the effort to differentiate between “shouting fire” and “political offenses.” 

Political Offenses in the Covid Era

Wilson, Holmes, and the country’s hegemonic forces conflated dissent with public endangerment to suppress dissidents during World War I. 

Like Wilson’s treatment of Debs, Biden stripped his opponents of their constitutional rights, maligned their reputations, and accosted them for insufficient loyalty to his edicts. And, like Wilson, the Biden administration carried out this assault on the Constitution while touting “democracy,” usurping the Bill of Rights with hubris and malice. 

“This is a pandemic of the unvaccinated,” President Biden said in December 2021. “The unvaccinated. Not the vaccinated, the unvaccinated. That’s the problem.” 

But Biden wasn’t speaking out of concern for his citizens’ health; he quickly turned to attacking the patriotism of those who defied his mandates:

“Everybody talks about freedom and not to have a shot or have a test. Well guess what? How about patriotism? How about making sure that you’re vaccinated, so you do not spread the disease to anyone else?”

Challenging foreign policy became treasonous under Wilson, and Biden extended that principle to those who questioned his administration’s public health mandates. In doing so, he divided the country along binary lines, telling his supporters that the enemies of “patriotism” infected their communities. 

In July 2021, President Biden attacked social media companies for not censoring discussions of Covid enough. “They’re killing people,” he told the press. 

Biden later clarified his remarks, explaining that his comment was a call for censorship, not a personal attack. “My hope is that Facebook, instead of taking it personally that somehow I’m saying ‘Facebook is killing people,’ that they would do something about the misinformation,” he explained.

Facebook heeded the call, and its employees updated the Biden White House the following week on their ramped-up censorship initiatives. A Facebook executive emailed government officials to say that they were working to censor pages that the administration found inconvenient. 

“I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken to further address the ‘disinfo dozen,’” the executive wrote to the White House. 

Wilson took similar steps to suppress circulation of speech critical of his administration. His regime ordered the postal service to ban hundreds of American newspapers and magazines from the mail. Albert Burleson, the US Postmaster General at the time, said he was on the lookout for any publications “calculated to … cause insubordination, disloyalty, mutiny … or otherwise embarrass or hamper the Government in conducting the war.” 

The Biden administration replicated this strategy in the digital age to stifle dissent that could “embarrass or hamper” its Covid edicts. 

Rob Flaherty – the White House Director of Digital Strategy – demanded to know why Facebook had not removed a video of Tucker Carlson reporting that Johnson & Johnson’s vaccine was linked to blood clots. 

Like banning publications from the mail a century earlier, the explicit aim was to reduce circulation of criticism of the regime. 

“There’s 40,000 shares on the video. Who is seeing it now? How many?” Faherty complained, “How was this not violative… What exactly is the rule for removal vs. demoting?”

Implicit in the suppression efforts is the notion that the targets are wrong and dangerous.

Just as Holmes had done a century before, Biden’s administration conflates “shouting fire” with “political offenses,” seeking to eradicate the latter with the excuse of public endangerment. 

In July 2021, Surgeon General Vivek Murthy told the press there was an “urgent threat of health misinformation” related to Covid. When asked about free speech concerns, Murthy quickly pivoted to implying that dissent caused imminent harm.

“Just consider this,” Murthy lectured the public. “If you’re a mom or a dad out there, like me, and you’ve got small kids at home, and if somebody, God forbid, gets sick, or if you see the virus coming and you’re thinking how can I protect my children? It is your right to have accurate information that you can base your decisions on.” 

Murthy instinctively changed the conversation from freedom of speech to dying children despite the disease’s minimal effects on young people. 

Meanwhile, the CDC used false data to recommend kids get the Covid vaccine. The agency drastically overestimated and over-reported the threat that Covid poses to young children in its presentation to the Advisory Committee on Immunization Practices (ACIP) in June 2022. Based on the presentation of this false data, the ACIP voted to recommend Covid vaccinations to kids as young as six months old. 

Bureaucrats falsely stated the existence of a risk in an effort to induce a reaction from the general public. On its face, this sounds exactly like “falsely shouting fire in a crowded theater.”

But, just as Freund observed a century ago, the censors had conflated “shouting fire” with “political offenses.” While the CDC’s manipulations may have caused unnecessary danger and panic, the agency’s bureaucrats will never be guilty of political offenses under Biden’s regime. 

Demanding Conformity

In October 2020, infection disease epidemiologists and public health scientists presented the Great Barrington Declaration (GBD), an open letter challenging government lockdown policies. 

“Current lockdown policies are producing devastating effects on short and long-term public health,” the GBD asserted. “The results (to name a few) include lower childhood vaccination rates, worsening cardiovascular disease outcomes, fewer cancer screenings and deteriorating mental health – leading to greater excess mortality in years to come, with the working class and younger members of society carrying the heaviest burden. Keeping students out of school is a grave injustice.” 

After its release, NIH Director Francis Collins and Anthony Fauci coordinated a “devastating takedown” of the doctors challenging their policies.

Fauci compared the doctors behind the GBD to “AIDS denialists,” and Collins ordered “a quick and devastating published take down” of the group. 

Like their predecessors a century before them, the goal was censorship and the accompanying augmentation of state power, not the veracity of the argument. 

Studies later proved that the GDP’s signers had been correct about the effects of shuttering schools, closing businesses, and locking Americans in their homes.

In January 2022, Johns Hopkins research found, “Lockdowns have had little to no public health effects, they have imposed enormous economic and social costs where they have been adopted. In consequence, lockdown policies are ill-founded and should be rejected as a pandemic policy instrument.”

But “America’s Doctor” never apologized for slandering those who disagreed with his policies. Ego and power were far too important for issues of humility. As he infamously told Chuck Todd, “A lot of what you’re seeing as attacks on me, quite frankly, are attacks on science.” 

The censors perpetuate the conflation between “shouting fire” and “political offenses” to maintain their control over speech. They keep their edicts vague to extend their authority. 

In California, Governor Gavin Newsom – a potential successor to Mr. Biden – signed Assembly Bill 2098 into law in September 2022. This law seeks to punish physicians who share information that does not fall within “contemporary scientific consensus.” 

Five California doctors challenged the law, noting in their suit, “labeling speech ‘misinformation’ does not strip it of First Amendment protection.”

In January, district court Judge William B. Shubb issued a preliminary injunction blocking the bill from going into effect. He called the law’s definition of misinformation “nonsense” and found that the restrictions were “unconstitutionally vague.” 

“COVID-19 is a quickly evolving area of science that in many aspects eludes consensus,” Shubb wrote. 

Of course, this has been obvious since the onset of Covid. In 2020, the WHO tweeted support for China’s claim that Covid was not contagious between humans. In 2021, CDC Chief Rochelle Walensky said Covid vaccines prevented infection. That year, Dr. Scott Gottlieb, former commissioner of the FDA, admitted that six-foot guidelines for social distancing were “arbitrary.” 

But the Biden White House and the public health apparatus have never indicated that these changing developments could lead to humility. Instead, they continue to slander dissidents and maintain their ongoing collusion with Big Tech to stifle dissent.

The Fog of War’s Dissipation

Time vindicated Ernst Freund’s criticism of Justice Holmes. 

Warren G. Harding won the presidency in 1920 with 60 percent of the popular vote, succeeding Wilson under the campaign slogan “Return to Normalcy.” Harding, a conservative senator from Ohio, released political prisoners convicted under Wilson’s regime.

“We cannot punish men in America for their exercise of their freedom in political and religious belief,” Harding said.

In the first year of his presidency, he commuted Debs’s prison sentence despite the labor leader’s fierce opposition to Harding’s politics. Harding commented of Debs, “I recognize his right to his belief, and I think him wholly sincere.” 

Harding emphasized that he would only grant relief to political prisoners who had not advocated violence, thus managing to differentiate violence and “political offenses,” unlike his predecessor. 

In 1969, the Supreme Court effectively overturned Schenck in Brandenburg v. Ohio

Concurring in judgment, Justice Douglas wrote that the cases from the World War I era “show how easily” the precedent from Schenck “is manipulated to crush what [Justice] Brandeis called ‘the fundamental right of free men to strive for better conditions through new legislation and new institutions’ by argument and discourse.” 

The Covid Leviathan stripped Americans of their First Amendment rights and divided them as well. Bureaucrats worked to stifle journalists who reported on inconvenient facts, President Biden attacked his own citizens as unpatriotic, and Anthony Fauci coordinated attacks against scientists who dared to challenge his authority. 

In January 2023, the Biden White House announced that Covid emergency declarations will end in May. This is unlikely to change any Americans daily routines, but perhaps it signifies the impending dissipation of Covid’s fog of war. 

Published under a Creative Commons Attribution 4.0 International License
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  • William Spruance

    William Spruance is a practicing attorney and a graduate of Georgetown University Law Center. The ideas expressed in the article are entirely his own and not necessarily those of his employer.

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