Turns out, falsely shouting “Fire!” in a crowded theater may be okay

“It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote.”

This headline over a 2012 opinion piece in The Atlantic magazine concluded—wrongly, I think—that opinionators and random others had erroneously applied the famous quote to free-speech debates for decades and should stop.

In fact, this most common interpretation of the quote is absolutely correct, in my view, and that now is exactly the right time to use it after defeated former President Donald Trump urged his supporters at a Jan. 6 public rally to march on the U.S. Capitol and “fight like hell!”

Shouting “Fire!” In a crowded theater to cause pandemonium, and a president of the United States explicitly encouraging his minions to assault the Capitol, are both examples of speech purposefully employed to incite violent reactions.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

U.S. Supreme court justice oliver wendell Holmes

Yet, the Atlantic essay referenced above and another article earlier this year—”America’s Favorite Flimsy Pretext for Limiting Free Speech”—flog the same theme, that Americans are ignorantly misunderstanding the meaning of the iconic “Shouting fire in a crowded theater” quote.

It’s yet another example, to my mind, of vastly overcomplicating things that are actually quite simple.

The quote derives from the March 3, 1919, U.S. Supreme Court decision—Schenck v. United States—in which justices ruled that “freedom of speech protection afforded in the U.S. Constitution’s First Amendment could be restricted if the words spoken or printed represented to society a ‘clear and present danger.'”

It’s important to consider that the case played out during a uniquely historical moment, with a citizen prosecuted for his protestant writings in a pamphlet printed in 1917, the year America formally entered World War I and Congress passed the Espionage Act, making it illegal during wartime to:

“… willfully make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies…[or] willfully cause or attempt to cause insubordination, disloyalty, mutiny, or refusal of duty, in the military or naval forces of the United States, or shall willfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States.”

The apparent question, in that case, was whether free speech allows criticism of the nation’s decision to wage war.

The defendant in the relevant case, Charles T. Schenck, was general secretary of the U.S. Socialist Party, whose policies opposed the implementation of a national military draft to procure troops for the 1914-1918 war, in which Germany, Austria-Hungary, Bulgaria and the Ottoman Empire (the Central Powers) battled against Great Britain, France, Russia, Italy, Romania, Japan and the United States (the Allied Powers).

In his 2012 Atlantic piece, Trevor Timm wrote:

“First, it’s important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck… could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU’s [American Civil Liberties Union’s] Gabe Rottman explains, ‘It did not call for violence. It did not even call for civil disobedience.’”

Before issuing the high court’s official ruling in Schenck, Supreme Court Justice Oliver Wendell Holmes (1841-1935) wrote this statement below, which Timm believes is “perhaps the most well-known— yet misquoted and misused—phrase in Supreme Court history.”

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

My interpretation is that Holmes was saying free speech is not absolute and that its protections end where clear foreseeable harm begins. However, this famous statement is a nonbinding aside to the actual court ruling.

In an Atlantic op-ed this year, Jeff Kosseff, an cybersecurity-law professor at the U.S. Naval Academy and the author of The United States of Anonymous: How the First Amendment Shaped Online Speech (2022), explained:

“In a six-paragraph opinion issued on March 3, 1919, Justice Holmes wrote for a unanimous Court that Schenck’s conviction was justified because the leaflets advocated for obstructing military recruiting and therefore constituted a ‘clear and present danger’ during a time of war. ‘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,’ Holmes wrote. ‘But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’”

In other words, Holmes was saying that free speech is not absolute.

In my view, this is perfectly applicable to the inciteful speech Trump gave January 6 urging the aggressive, angry crowd to attack the Capitol and “fight like hell.”

What did he think—wholly expect, actually—would happen next?

But complicating this narrative, unfortunately, is the fact that less than a year later, Justice Holmes spun on his heels and reversed his position on speech, joining fellow Justice Louis Brandeis in dissenting in Abrams v. United States. The seven justices in the majority voted in Abrams to affirm the conviction of Russian immigrants to the U.S. who had distributed leaflets criticizing the American military policy in Russia.

Holmes rationalized that, unlike what he believed was the case in Schenck, he didn’t think the Russian emigres’ actions obstructed U.S. military operations in Russia.

“In Abrams, Holmes famously maintained 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,’” Kosseff wrote in his Atlantic piece.

Like the truth that the 2020 presidential election was “stolen” from Donald Trump, a bald-faced lie more than half the electorate chomped-on hook, line, and sinker? And which led directly to the Jan. 6 Capitol insurrection.

That is what happens when free speech is considered virtually absolute in an environment where irrationality and bigotry reign.

Holmes has become the avatar of the supposed originalist holiness of free speech, which, as Kosseff frames it, insists that “the antidote to bad speech and false statement is more speech, not suppression of speech. Or as Justice Holmes put it, ‘free thought—not … for those who agree with us but freedom for the thought that we hate.’”

Pretty words. But what about the existential dangers to individual citizens (e.g., five died and hundreds were injured as a result of the Jan. 6 attack). And what about the risks to our democratic-republican system of governance posed by a mendacious populist demagogue like Trump? Clearly, we can’t rely on native American good sense, honor, and public responsibility to save us in a pinch.

Free speech shouldn’t be absolute, and isn’t, here and elsewhere in other democracies. But it can be maddeningly nuanced in the U.S. For example, there is no such thing as illegal hate speech in America, unless it veers into harassment, intimidation or threats, or incitement of violence against people. The Law Dictionary, an an online legal resource, explains that under the First Amendment:

“Hate speech, generally defined as ‘public speech that expresses hate or encourages violence towards a person or group based on something such as race, religion, gender or sexual orientation’ is generally okay in the United States, although the protections have had their limitations.

“It is banned, however, in many countries, including Canada, England, Germany and Russia. The Canadian Supreme Court said why: “The Holocaust did not begin in the gas chambers,” said the court, “it began with words.”

The position of Canada’s highest court—“it began with words”—strikes me as the most rational in this context. Words can be weapons that harm or kill. Thus, some words can matter enormously more than others, no matter that the First Amendment treats all speech with democratic equanimity. And this amendment was created so government couldn’t control citizens’ speech, certainly not so politicians could freely deceive the populace with the help of historically expansive mass and social media the Founding Fathers couldn’t have imagined in the colonial era.

To be fair, autocracies, like Russia, although ostensibly honoring free speech in their constitutions, also use it to suppress dissent.

“In less than a decade, multiple laws have passed making it difficult for Russian citizens to speak publicly, especially via social media, about any discontent with the country’s government or even with certain religious authorities, such as the Russian Orthodox Church,” The Law Dictionary points out.

And still in the U.S. hating someone is not illegal, nor is voicing one’s hatred, even though hatred is a time-honored provocation to violence—just and unjust.

So, the question of the moment is what a headline in a 2021 article in the political journal The Hill presciently posed: “Is the antidote to bad speech more speech or more regulation? The article investigated the existential dangers to the safety and stability of the republic posed by disinformation and misinformation on social media.

Since our constitutional free-speech protection was ratified by the states in 1791, The Hill article explains:

“Judges have stated that the Constitution guaranteed a ‘marketplace of ideas’ where the truth would win out. The antidote to bad speech and false statement is more speech, not suppression of speech. Or as Justice Holmes put it, ‘free thought—not … for those who agree with us but freedom for the thought that we hate.’”

But I suspect the Founders envisioned a “marketplace of ideas” that resembled an orderly if robustly competitive 18^th-century economy, not a dog-eat-dog bloody riot at an Apple store the day a new iPhone iteration goes on sale in the internet age.

So, I favor more regulation and more civility. In fact, you can be prosecuted, if only indirectly, for falsely shouting FIRE! in a crowded theater, even if Oliver Wendell Holmes was referring to something else entirely.

But only if the problematic speech were “directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” according to Timm, who added the italic emphasis.

I’m thinking that’s way too high a bar to reasonably clear. So to speak.