Don’t yell about this unless you really see it.
Lately in the news, I have heard a great deal about “free speech” and along with that some variation on the phrase “falsely shouting fire in a theatre and causing a panic.”
That phrase came from Supreme Court Justice Oliver Wendell Holmes who write it in a case called U.S. v. Schenck. In that case, Charles Schenk, a self-avowed socialist, was charged under the federal Espionage Act for writing a brochure against the draft. It urged young men to assert their rights. It did not advocate violence or disobedience. Justice Holmes used the language about shouting fire in a crowded theatre as an analogy. It wasn’t part of the holding in the case, it was part of what lawyers call the dicta, that is, the filler language that doesn’t have any authority but is just part of the explanation. What the ruling came down to was that the brochure Schenk wrote was held to be a “clear and present danger” to America, which was fighting a war at the time, since he was trying to deprive the country of fighting men.
Abrams v. United States was a similar fact pattern – self-avowed socialists were writing and distributing brochures. The difference was that the defendants in Abrams actually did call for violence and sedition. “the plain purpose of their propaganda was to excite, at the supreme crisis of the war, disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of embarrassing and if possible defeating the military plans of the Government in Europe. A technical distinction may perhaps be taken between disloyal and abusive language applied to the form of our government or language intended to bring the form of our government into contempt and disrepute, and language of like character and intended to produce like results directed against the President and Congress, the agencies through which that form of government must function in time of war.” Abrams v. United States, 250 U.S. 616, 623-24 (1919) Interestingly, however, Oliver Wendell Holmes, who had just written the Schenk decision, changed his mind and dissented in that case.
Since then, there have been a number of cases about free speech which have loosened the reigns somewhat. In 1969, Brandenburg v. Ohio dealt with speech by the Ku Klux Klan. They broadcast a video disparaging Blacks and Jews and expressed their opinion that they should go back to Africa and Israel, respectively. Brandenburg repeated these statements in other places and was eventually charged under the Ohio Criminal Syndicalism Statute. What he said was, by any objective measure, distasteful at best and horribly offensive. But what he did not do was urge any specific action in order to make his opinions become reality. So the court held “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
I have read a number of articles and seen a few Tweets and other social media posts saying that the phrase (and its variations) “Shouting fire in a crowded theatre” can’t be used anymore because the case it is contained in isn’t good law anymore. It’s true that if Schenck were to be tried today the case would more likely than not have a different outcome – it is more like Brandenburg and cases like it. Although we might not like what Schenck had to say, he wasn’t creating a “clear and present danger” that put anyone in harm’s way. That doesn’t mean, however, that there isn’t anything worthwhile in the decision. If you falsely shouted “fire!” in a crowded theatre causing a panic, you would likely create a clear and present danger. More than one person has been hurt in the crush of a crowd fleeing towards the exit and pushing the weaker crowd members (which, let’s be honest, would be me) out of the way. So although I get that there are tons of people who will disagree with me, I think that phrase can still be used as an example of how free speech doesn’t mean you can say absolutely anything anywhere and any time you want. Free speech has its limits.
If you don’t believe me, try it, and see how quickly you get arrested or, at the very least asked to leave. Remember: that theatre is probably a private business, not government owned or operated, which means the management can decide not to tolerate whatever they want.
Nothing in this article should be construed as legal advice. It is being offered for informational purposes only.