January 21, 2010

In Support of Shouting Fire (in a Crowded Theater)

Often proponents of censorship refer to the phrase "shouting fire in a crowded theater" as a clear case where free-speech should not be protected. The point is simple, but bears repeating: if somebody falsely claims a fire and as a result people panic and folks get hurt, the person who knowingly lied about the fire should be liable for the injuries and resultant destruction.


Supreme court justice Oliver Wendell Holmes Jr. explained this point in his majority opinion in a 1919 case this way:

"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."

It thus begs the question that if this point came up in a specific court case, to better understand the phrase and its implications, we should take a look at the case itself. While the phrase seems rather clear-cut, the context in which it was invoked is much less certain. In the Supreme Court case Schenck v. United States, the Secretary of the Socialist Party, Charles Schenck, was convicted under the Espionage Act of 1917.

So what did this "Socialist spy" actually do that lead to his arrest? He spoke out against the draft. He printed, distributed, and mailed 15,000 leaflets to men eligible for the draft telling them to "assert your rights" and not to "submit to intimidation." Another message reads, "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain."

To us today where anti-war protesters are given a much longer leash by the government, these rather commonplace statements hardly seem worthy of note. Yet, not only was he brought to court for exercising his free speech, but he was also given six months in prison after a unanimous Supreme Court decision ruled that his speech was not protected by the First Amendment. After being released, he was later found dead in his house, presumably from pain-killers.


As Holmes, the justice pictured above, said: "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right."

This inevitably reminds one of the modern day right-wing assertion that the former President could not be criticized while "we're at war." How a man publishing anti-draft leaflets constitutes a "clear and present danger" and will "bring about substantive evils" is far beyond my understanding. This concept that civil liberties must be sacrificed during times of war is a rather common and dangerous fallacy. Media and government constantly reminded us that we go to war to protect liberties and expand democracy, yet then how can a war that is supposed to spread liberty abroad simultaneously diminish liberty at home?

Although the criteria of "clear and present danger" was later modified in an Ohio court case concerning the KKK, to me the whole concept of censorship seems bunk. Although responsibility should always be exercised in our speech, I cannot see a reason why speech should be limited just because it goes against the politics of the time. If somebody opposes a war, they have a constitutional right to express that opposition without fear of reprisal. If not, the First Amendment is a farce. Justice Holmes is a well-respected legal thinker, however on this point I'm going to have to respectfully disagree.


As an American, we have to realize that the same types of speech that are considered tantamount to "shouting fire" are the same types of speech that made this country possible. Was Thomas Paine shouting fire? Did the Declaration of Independence constitute a clear and present danger? I would say no, they did not. So, next time somebody talks about fire and crowded theaters, let them know where the phrase comes from and the un-democratic principles it assumes.