Yelling fire in a crowded theater

Yes, you can

How often have you heard foes of free-speech say that “you can’t yell fire in a crowded theater”? Tim Walz, during the Oct. 1 vice presidential debate, said it to JD Vance, adding “That's the test. That's the Supreme court test.” And people readily assent, not even knowing or understanding the origin of this misguided motto.

This trope is not a legal test. It is not from a ruling. It is not a precedent. The statement that, “you can’t yell fire in a crowded theater” was part of an opinion written by Justice Oliver Wendell Holmes regarding the 1919 Supreme Court case of Schenck v The United States https://supreme.justia.com/cases/federal/us/249/47/. Let’s begin with the background of this banality.

Charles Schenck served as the Secretary General on the Executive Committee of the Socialist Party of Philadelphia. When the U.S. entered World War I, Schenck had the Party print pamphlets instructing people to reject being drafted into the military based on the Thirteenth Amendment’s protection against involuntary servitude. In response, the government sought to silence Schenck, pursuing charges under the auspices of the Espionage Act of 1917.

The portion of the Espionage Act of 1917, and its amendments as added by the Sedition Act of 1918, which aimed to outlaw not only espionage, but criticism of the U.S. government during times of war, and under which Schenck was charged reads as follows:

Section 3 (Espionage Act): Whoever, when the United States is at war…shall wilfully cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or shall wilfully obstruct the recruiting or enlistment service of the United States, to the injury of the service or of the United States, shall be punished by a fine of not more than $10,000 or imprisonment for not more than twenty years, or both.

Section 3 (Sedition Act): Whoever, when the United States is at war…shall willfully utter, print, write, or publish any disloyal, profane, scurrilous, or abusive language about the form of government of the United States, or the Constitution of the United States, or the military or naval forces of the United States …or shall willfully…advocate, teach, defend, or suggest the doing of any of the acts or things in this section enumerated and whoever shall by word or act…oppose the cause of the United States therein, shall be punished by a fine of not more than $10,000 or imprisonment for not more than 20 years, or both.

The legal battle, which focused on whether such printed speech was protected under the First Amendment rose all the way to the Supreme Court. The court decided unanimously that Schenck had violated the Espionage Act and held that the Act did not violate the First Amendment.

In the opinion for the case, Justice Holmes penned the following words:

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.

In other words, the real issue isn’t so much the speech as it is the potential harm that might result from it.

This “shouting fire” opinion from Justice Holmes is, however, according to an article in The Atlantic of all places, “…what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority.”

This article in The Atlantic also calls the ruling in Schenck, “one of the most odious free speech decisions in the Court's history.”

As that article rightly asserts, the Schenck decision (which had nothing to do with shouting fire in a theater - that was simply an analogous example meant to express the “clear and present danger” principle) was essentially overturned in 1969 by the Supreme Court’s decision in Brandenburg v. Ohio.

In the opinion for the case, Justice Douglas wrote, “I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.” He goes on to cite multiple other cases, including Justice Holmes’ dissent in Gitlow v. New York. In his eventual conclusion Justice Douglas wrote: “My own view is quite different. I see no place in the regime of the First Amendment for any ‘clear and present danger’ test, whether strict and tight, as some would make it, or free-wheeling, as the Court in Dennis rephrased it.”

What Douglas clearly understood with regard to the right to free speech (which is not granted, but protected, by the First Amendment), as with any right, is absolute.  Any right is limited only at the point when it is used to violate the rights of others. This is why you can face legal consequences for libel, slander, incitement (which results in violence), and threats. Otherwise, the rights listed by the Bill of Rights (and any right not specifically listed, according to the Ninth Amendment) are there as a reminder that government may not infringe them.

Which brings us back to those cantankerous champions of censorship. In an astounding display of their lack of self-awareness, these same people who wish to curtail our conversations because they may prove dangerous regularly use inciting language. Using the inciting language they claim to stand against, they label a political opponent an “existential threat” to the country or “democracy,” and call his followers extremists who threaten “the very foundations of our republic”.

These same wrongfully claim that “misinformation” (which they often propagate), “hate speech” (in which they, more than anyone, partake), and dissent (which they despise) is not protected speech. Walz explicitly claimed that “there's No Guarantee To Free Speech On Misinformation Or Hate Speech, And Especially Around Our Democracy.” On the contrary - that is specifically what the First Amendment was intended to defend.

If the First Amendment only protected speech we like or the government approves, it would be a gratuitous addition to the Bill of Rights. No, the First Amendment is there to guard against those who would quash speech with which they don’t agree, speech that is offensive or contrary. This is not the American way. Those who swear an oath to uphold and defend the Constitution should know better, and if they don’t, they should not hold elected office.