After the last meeting of CFI Michigan, a bunch of us went out to a restaurant as we always do, and sat and talked. In a conversation about some First Amendment issue, one guy trotted out the trite and false “you can’t shout fire in a crowded theater” analogy (which was not even remotely analogous to the subject we were discussing). If you’ve ever used this argument in arguing for some particular restriction on freedom of speech, please stop.
First of all, not only is it virtually never analogous to the argument being made, it wasn’t even remotely similar to what was going on in the very case in which it was invented. The full statement — “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” — comes from a Supreme Court ruling in 1919 in a case called Schenck v United States and it was written by Justice Oliver Wendell Holmes, a first ballot inductee into the Vastly Overrated Hall of Fame.
This case is also where the phrase “clear and present danger” comes from. That was the standard that the court established for when the government could suppress the free speech rights of citizens, until it was overturned in 1969. The case involved Charles Schenck, the secretary of the Socialist Party of America, who had printed up and distributed pamphlets during WWI urging people not to comply with the draft. Those pamphlets argued that the draft violated the 13th Amendment ban on involuntary servitude (and he was right, in my view).
Schenck was arrested for this and convicted of violating the Espionage Act of 1917. He appealed all the way to the Supreme Court, which handed down an appalling 9-0 ruling upholding his clearly unconstitutional conviction. Holmes’ written opinion said:
The most stringent protection of free speech would not protect a man in 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.
It is important to note here that the analogy of shouting fire in a crowded theater was utterly absurd even when it was invoked, since nothing in the Schenck case was even remotely similar to such an act. The most that could possibly be said is that Schenck might be able to convince a small number of people to defy the draft, with the impact on the war effort negligible at the very most. No one was put in danger by his words, imminent or even in some far-fetched string of causation.
The metaphor was absurd in the very case for which it was invented; it is even more absurd in most other cases. And it’s almost always used to justify some totally unrelated restriction on free speech, as if the mere fact that the court recognizes some narrowly defined exceptions to the First Amendment somehow justifies the particular exception the person arguing wants to carve out. The fact that a right is not absolute (no right is, of course) is not an argument in favor of any specific exception that someone wants to argue for. So it’s just an illogical argument to make all the way around.
For nearly a century now, our discourse on constitutional matters has been haunted by a ridiculous analogy that was meaningless when it was created and even more meaningless now. It’s time to put this tired cliche to rest, once and for all.
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