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Fire!

“You can’t yell ‘FIRE!’ In a crowded theater”

It’s one of the things you hear a great deal in the US. After all, it’s quick, pithy, and easy to remember.

It’s also wrong.

To understand why it is wrong and how it is wrongfully used, we need to go back to the origins of the phrase which is the Supreme Court case of Schenck v. United States.

The facts of the Schenck Case were as follows. Charles Schenck and Elizabeth Baer were members of the Executive Committee of the Socialist Party in Philadelphia, of which Schenck was General Secretary. The executive committee authorized, and Schenck oversaw, printing and mailing more than 15,000 fliers to men slated for conscription during World War I. The fliers urged men not to submit to the draft, saying “Do not submit to intimidation”, “Assert your rights”, “If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain,” and urged men not to comply with the draft on the grounds that military conscription constituted involuntary servitude, which is prohibited by the Thirteenth Amendment.

After jury trials Schenck and Baer were convicted of violating Section 3 of the Espionage Act of 1917. Both defendants appealed to the United States Supreme Court, arguing that their conviction, and the statute which purported to authorize it, were contrary to the First Amendment. They relied heavily on the text of the First Amendment, and their claim that the Espionage Act of 1917 had what today one would call a “chilling effect” on free discussion of the war effort.

In delivering the unanimous opinion of the Court, Justice Oliver Wendell Holmes, Jr. wrote:

But it is said, suppose that that was the tendency of this circular, it is protected by the First Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively from well known public men. It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the [p52] main purpose, as intimated in Patterson v. Colorado, 205 U.S. 454, 462. We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. (emphasis ours)

The Scheck case was followed by two other cases that were decided along the same lines. The first is Debs v. United States and the second is Frohwerk v. United States.

Why were these cases decided this way?

The cases including in the Schenck case, all involved opposition to American involvement in World War I, and / or peacefully resisting the military draft. Holmes himself had served admirably in the Civil War and rose to the rank of lieutenant colonel. He would have been familiar with the discord and strife caused by the draft riots of the Civil War. We can’t prove it, but we suspect that his opposition to any First Amendment defense (as we understand it today) was somehow tainted by the suffering and horrors he witnessed on Civil War battlefields. Holmes would have been a strong proponent of “there is a war to fight – you can’t speak out against the direction of the government” for that reason.

In all three cases the Supreme Court upheld the position that the government could prosecute people for speech the government did not like as well as preventing the speech to begin with.

Later, Holmes dissented in a case called Abrams v. United States, where Holmes seems to recognize the horror of the Schenck trilogy of cases and starts to walk them back. Holmes, in dissent, wrote:

But, as against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.

[….]

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. (emphasis ours)

You can see the shift starting to what is generally accepted today to be the “imminent danger” doctrine where expression can be restricted if the expression is likely to bring out immediate illegal actions (such as a speaker telling people to burn down a building.)

You can yell “Fire!” in a crowded theater. That’s the law. The government has no means or method to stop you. With few exceptions, the government cannot muzzle a speaker or deprive them of their First Amendment rights. Moreover, the phrase that is often cited of “you can’t yell ‘fire!’ in a crowded theater” is not what Holmes wrote.

What was said was that the First Amendment doesn’t protect you if you falsely yell that there is a fire in a crowded theater. You can still yell that there is a fire when there is not one, but “freedom of speech” and the First Amendment won’t protect you from the consequences.

There are other types of speech that fall into the same type of scenario. The government cannot prevent you from libeling someone, but the First Amendment won’t protect you from the consequences of that libel. The same is true for slander. You can’t be censored by the government, but there are consequences for the slander.

Too often we have heard “you can’t yell ‘fire!’ in a crowded theater” being used to censor someone. The thought process is that if there are consequences to yelling “fire,” why not just censor the use of the word “fire” to begin with?

Even more common is “we don’t like certain things that are said, and because you can’t yell ‘fire!’ in a crowded theater (meaning all speech is not protected) we should just ban speech that we don’t like.”

That’s dangerous.

It’s also not what even Justice Holmes believed in the Schenck case.

Saying “you can’t yell ‘fire!’ in a crowded theater is a lazy way of promoting censorship. Even though the concept has been walked back by the Supreme Court, people still use it today to justify censoring ideas they do not like.

Don’t be lazy. Stick up for the rights of people to express themselves without government intervention or censorship, but know that your speech may have consequences.



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