Fire in a crowded theater

Just over a century ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known, 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.”

Without fail, whenever any controversy about limiting people’s rights comes up, someone will misquote this phrase as proof of limits on the right to free speech, then use that as support for their claim that all rights have limits. Whatever that controversy may be, the law can then be interpreted to mean that we should limit the rights of the people. Holmes’ quote has become a crutch for every would be tyrant in America, yet the quote is often misunderstood.

Go read the case where the phrase originated before using it as your argument. I will wait. The case is U.S. v. Schenck, and it was so bad that was overturned more than 50 years ago.

The case had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. The case didn’t call for violence. It did not even call for civil disobedience. It simply urged people to vote out any politician who supported it.

The crowded theater remark that everyone likes to trot out was an analogy Holmes made before issuing the court’s holding. He was explaining that the First Amendment is not absolute. The actual ruling, that the pamphlet posed a “clear and present danger” to a nation at war, landed Schenk in prison. That case, along with two others, was used to toss people in prison for daring to oppose or speak out against President Wilson’s policies.

The case was effectively overturned in 1969, with the Supreme Court’s decision in Brandenburg v. Ohio. In that case, the Court held that inflammatory speech, even speech advocating violence by members of the Ku Klux Klan, is protected under the First Amendment, unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Sound familiar? This is why they can’t do shit about what President Trump had to say on January 6, nor can they legally shut down the speech of the right. So instead, they are allowing large megacorporations to have monopolies on the digital town square, they coopting them into performing the censorship for them.