Legalese — Fire in a Theater

While most people have heard that phrase, or some variant on it, most people don’t know that it came from a Supreme Court decision penned by none other than Oliver Wendell Holmes, Jr.  Justice Holmes wrote that unanimous decision in 1919 in a case called “Schenk vs. the United States.”

This case is notable not just because it gave us that famous phrase, but because it tells us that there are, in fact, limits on free speech. 

In that case, a man named Schenk was the general secretary of the Socialist Party in the U.S. He printed up and distributed a number of leaflets urging young men to resist the draft. He was charged with violating the espionage act, in that what he did was aimed at causing insubordination in the military, and to disrupt the recruiting of soldiers.  Schenk’s defense, among other things, was that the constitutional guarantee of freedom of speech as guaranteed by the 1^st Amendment to the Constitution, prohibited his prosecution for mere words.

I do not pretend to be a better writer than Justice Holmes, and so I will quote what he has to say here about free speech: “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, 195 U. S. 205, 195 U. S. 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, 221 U. S. 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. It is a question of proximity and degree.”

What this means is that freedom of speech is not unlimited. It is difficult to set up a definitive rule about what you can and cannot say – there are times when shouting “fire” in a crowded theater would save lives. And there are times when shouting “fire” in a crowded theater would cause nothing but chaos and potential injury. It isn’t the particular words or speech that are the problem. It is the way those words are used – the when and the how. If Schenk had used those same words in a living room with 10 people it probably would have been ok. If he had used them outside of war time, it might have been ok. But distributing thousands of leaflets to already drafted men, urging them to resist, during World War I, was not ok.

From the reports I’ve seen from friends on vacation and other friends who live there, the announcement regarding missiles in Hawaii caused panic and chaos for nothing. It was falsely shouting fire in a theater. (Shouting bomb on a beach?)  I’m not clear on who sounded the alarm or why, but whoever it was, if prosecuted, can’t use free speech as a defense.