Shouting fire in a crowded theater
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"Shouting fire in a crowded theatre" is a popular metaphor and frequent paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919. The paraphrasing does not generally include the fact that falsely shouting fire to highlight that speech which is merely dangerous and false which can be distinguished from that which is truthful but also dangerous. The quote is used as an example of speech which is claimed to serve no conceivable useful purpose and is extremely and imminently dangerous, such as distributing fliers in opposition to a military draft, so that resort to the courts or administrative procedures is not practical and expresses the permissible limitations on free speech consistent with the terms of the First Amendment of the United States Constitution.
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[edit] The Schenck case
Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917, (amended with the Sedition Act of 1918), to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater 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.
Holmes wrote of falsely shouting fire, because, of course, if there were a fire in a crowded theater, one may rightly indeed shout "Fire!"; one may, depending on the law in operation, even be obliged to. Falsely shouting "Fire!" in a crowded theater, i.e. shouting "Fire!" when one believes there to be no fire in order to cause panic, was interpreted not to be protected by the First Amendment.
The First Amendment holding in Schenck was later overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot). The test in Brandenburg is the current High Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are blatantly obvious.
[edit] Literal examples
People have indeed falsely shouted "Fire!" in crowded public venues and caused panics on numerous occasions, such as at the Royal Surrey Gardens Music Hall (London) in 1856, in Harlem in 1884,[1] and in the Italian Hall disaster of 1913, which left 73 dead.
[edit] Criticism
Fenan writes that Justice Holmes began to doubt his decision due to criticism received from Free Speech activists. He also met the legal scholar Zechariah Chafee and discussed his work "Freedom of Speech in Wartime".[2][3] According to Fenan, Holmes's change of heart influenced his decision to join the minority and dissent in the Abrams v. United States case. Abrams was deported for issuing flyers saying the US should not intervene in the Russian Revolution. Holmes and Brandeis said that 'a silly leaflet by an unknown man' should not be considered illegal.[2][4]
In A People's History of the United States, Howard Zinn suggested that Schenck's statements were more akin to a person standing outside a burning theater and shouting "Fire!" in order to warn people not to go inside. In other words Europe was the theater, and World War I was the fire, thus warning the American population to not become involved.
In the introduction to his famous 2006 debate speech in defence of free speech, Christopher Hitchens parodied the Holmes judgement by opening "FIRE! Fire, fire... fire. Now you've heard it," before condemning it as "the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes". He went on to discuss the detail of the Holmes judgment, arguing (like Zinn) that the imprisoned socialists "were the ones shouting fire when there really was a fire in a very crowded theatre indeed." This then led into the principal argument of his speech: "[W]ho’s going to decide? To whom do you award the right to decide which speech is harmful, or who is the harmful speaker?"[5][6]
[edit] See also
[edit] References
- ^ "A Cry of Fire in a Crowded Theater." (PDF). The New York Times: p. 4. September 25, 1884. http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9A06EED8113EEF33A25756C2A96F9C94659FD7CF.
- ^ a b Christopher M. Finan (2007). From the Palmer Raids to the Patriot Act: a history of the fight for free speech in America. Beacon Press. pp. 27–37. ISBN 9780807044285. http://books.google.com/books?id=rC3DudPp5tkC. Retrieved 2011 03 25.
- ^ Chafee, Zechariah (1919). "Freedom of Speech in Wartime". Harvard Law Review 32 (8): 932–973. doi:10.2307/1327107.
- ^ William E. Leuchtenburg, The Perils of Prosperity, 1914-32 (Chicago: University of Chicago Press, 1958), 43
- ^ http://www.youtube.com/watch?v=X3Hg-Y7MugU
- ^ http://documents.ariadacapo.net/borrowed/2006_11_christopher_hitchens/christopher_hitchens_2006_11_talk_transcript.pdf
[edit] Further reading
- Cohen, Carl (1989). "Free speech and political extremism: How nasty are we free to be?". Law and Philosophy 7:3 (1989): 263–279. doi:10.1007/BF00152513. http://deepblue.lib.umich.edu/bitstream/2027.42/43167/1/10982_2004_Article_BF00152513.pdf.
