Analysis

Debunking ‘Shouting Fire In A Crowded Theater’ Once And For All

   DailyWire.com
Oliver Wendell Holmes (1841-1935), Associate Justice of the Supreme Court, is shown seated at his desk.
Bettmann via Getty Images

In early January, CNN anchors Don Lemon and Chris Cuomo “got into a back and forth” over whether or not shouting “fire” in a crowded theater is a crime, while discussing the limitations of First Amendment rights.

“[The First Amendment] doesn’t allow you, as a Supreme Court justice said, the First Amendment is not designed to allow you to scream ‘fire’ in a crowded theater,” said Cuomo, who earned his law degree at Fordham University in 1995.

“I don’t know if it’s equivalent to that,” Lemon replied. “Well, Chris, you’re an attorney, you know that you can actually scream ‘fire’ in a crowded theater. That’s a misnomer.”

“If you do,” Cuomo retorted, “and if people get hurt, you’re going to jail.” When Lemon responded questionably, Cuomo insisted “That’s the law.” 

“Shouting fire in a crowded theater” is an analogy routinely used to discuss panic-inducing speech or actions. The phrase paraphrases Justice Oliver Wendell Holmes, Jr.’s 1919 opinion in the United States Supreme Court case Schenck vs. United States, which decided that speech opposing the World War I draft was not protected by the First Amendment in the context of the Espionage Act. Holmes wrote:

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

References to this opinion now appear every time the subject of freedom of speech and incitement of violence is approached. Indeed, many assume that Holmes’ opinion is, in fact, law. 

In 2012, CNN’s Christiane Amanpour — while discussing the false narrative that Benghazi was sparked by a documentary and that the movie depicted “the Islamic prophet Mohamed as a thug and a pedophile and ‘generally denigrated Islam,’ as was the filmmaker’s intention” — echoed the legislative claim, saying “There is also a 100-year-old law by the United States Supreme Court which says you can’t cry fire in a crowded theater.” 

The same logic was recently applied by John Fetterman, Lieutenant Governor of Pennsylvania.

 

What Holmes wrote in 1919 has now becomeperhaps the most well-known — yet misquoted and misused — phrase in Supreme Court history.” Its continued misuse is the result of generational ignorance, with the consequence of culturally diluting the First Amendment itself.

There are several key facts which should debunk this false claim once and for all. 

Firstly, Holmes’ opinion was never binding law, with the relevant case, Schenck v. United States, having nothing to do with the intersection of free speech and violence, and certainly not fires or theaters.

Secondly, the 1969 Supreme Court decision in Brandenburg v. Ohio effectively overturned the 1919 case, which deemed that inflammatory speech is protected under the First Amendment unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Finally, Holmes later dissented in Abrams v. United States, which was similar to the 1919 case and also surrounded the Espionage Act, writing “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.”

As described by Nashwa Gewaily, a media and First Amendment lawyer, “The ‘crowded theater’ statement in Schenck never amounted to any kind of binding standard or doctrine. It was basically a bit of emotionally charged extra flair from Justice Holmes, outside the official legal determination of that case; a powerful image that endured outside its context … It was not a high point in American jurisprudence.”

Harvard Law professor emeritus and constitutional law scholar Alan Dershowitz wrote in his 1989 Atlantic Monthly Article titled “Shouting ‘Fire,’” that analogies are, “by their nature, matters of degree. Some are closer to the core example than others. But any attempt to analogize political ideas in a pamphlet, ugly parody in a magazine, offensive movies in a theater, controversial newspaper articles, or any of the other expressions and actions cataloged above to the very different act of shouting ‘Fire!’ in a crowded theater is either self-deceptive or self-serving.”

It’s about time we put the “fire” analogy to rest. 

The views expressed in this opinion piece are the author’s own and do not necessarily represent those of The Daily Wire.

Ian Haworth is an Editor and Writer for The Daily Wire. Follow him on Twitter at @ighaworth.

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