Fire in a theater

From a post made by Big Country, we get this:

The “can’t yell fire in a crowded theater” trope is worn out bullshit. Justice Oliver Wendell Holmes wrote what 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.”

Whenever a free speech controversy hits, someone will drag this phrase out as proof of limits on the First Amendment before using that limit as an excuse to violate other rights. Holmes’ quote has become a crutch for every censor in America, yet the quote is misunderstood. Those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they’d realize it was never binding law, and the case it comes from, U.S. v. Schenck, was overturned over 40 years ago.

U.S. v. Schenck had nothing to do with fires, 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 pamphlet did not call for violence. It did not even call for civil disobedience. All it did was express opposition to the draft.

The Court’s description of the pamphlet proves it to be milder than any of the dozens of protests currently going on around this country every day:

It said, “Do not submit to intimidation,” but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed “Assert Your Rights.”

The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court’s holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority. In fact, the statement was The actual ruling, that the pamphlet posed a “clear and present danger” to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.

Two similar Supreme Court cases decided later the same year–Debs v. U.S. and Frohwerk v. U.S.–also sent anti-war activists to jail under the Espionage Act for the mildest of government criticism. Together, the three cases did more damage to First Amendment than any other set of cases in the 20th century.

It wasn’t until Brandenburg v. Ohio in 1969 that Schenck and any authority it carried was overturned. There, the Court held that inflammatory speech–and even speech advocating violence by members of the Ku Klux Klan–is protected under the First Amendment, unless the speech is directed to incite or produce imminent lawless action and is likely to incite or produce such action. (Note that this is the same reason why Trump can’t be prosecuted for what he said in his speech on January 6)

Today, despite the “crowded theater” quote’s legal irrelevance, advocates of government overreach have not stopped trotting it out as the final word on the lawful limits of the First Amendment. That quote is worse than useless in defining the boundaries of the limits on speech or on government tyranny. When used metaphorically, it can be deployed against any constitutional right. This is intellectually lazy and is outright dishonest.

Like the original case, this statement is being used by a tyrannical government that is using it to violate the rights of people who are on the wrong side of the political debate.