More Than You Wanted To Know: Shouting fire in a crowded theater

Is it really so bad?

Photo by Cullan Smith on Unsplash

Ask an American on what restrictions there should be on free speech and you’ll get a short set of answers. The first answer you’ll usually hear is that a “true threat” should not be protected by the First Amendment. If you seriously claim that you want to assassinate the president or kill your neighbor, that is an exception to free speech. Second, calls for imminent violence are not considered to be protected speech. If you exhort a crowd to burn down a building or riot in the streets, that is against the law. A third, and less obvious condition, is provoking panic. The common line is that “yelling fire in a crowded theater” is illegal.

That one seems out of place. Threatening to kill people or telling others to break the law makes sense. These are narrow, well-defined statements that a reasonable person can say fall outside of the First Amendment of the Constitution of the United States, which guarantees the freedom of speech. Shouting fire in a crowded theater doesn’t quite fit. Where did it come from?

In 1917 the United States entered World War I. Initially President Wilson favored an all-volunteer army, but six weeks into an enlistment campaign only 70,000 men had signed up. Thus, the first draft since the American Civil War began. At the time, opposition to the draft was fierce in some quarters, especially among socialists. The General Secretary of the Socialist Party of Philadelphia, Charles Schenck, distributed thousands of leaflets urging men not to submit to the draft in 1918. Schenck was arrested, charged, and convicted for violating the Espionage Act of 1917. He appealed the conviction to the Supreme Court, arguing that his leaflets were protected under the First Amendment.

The US Supreme Court ruled unanimously to uphold the conviction. Justice Oliver Wendell Holmes wrote in the opinion [bold text added]:

We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U. S. 194, 195 U. S. 205, 195 U. S. 206. 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. 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.

Reading it a hundred years later, this seems a bit farfetched. But yelling fire in a crowded theater, at the time, could be quite dangerous. Without present-day building codes, actual fires were quite dangerous in theaters. In 1903, a fire at the Iroquois Theater in Chicago killed an astonishing 600 people. Other fires routinely killed dozens. Fires were the mass shooters of the 20th century. Because of this fear, any call of fire immediately caused people to panic. In 1911, someone falsely yelled “Fire!” in a theater in Canonsburg, Pennsylvania, and over 20 people were killed in the resulting stampede.

So while yelling fire could certainly be outside the bounds of free speech in 1918, the connection between provoking a stampede and telling people to not follow draft orders is tenuous at best. The text of the leaflet tells the reader that their liberties are at risk and the 13th amendment prevents the US government from having a conscripted army. The latter is a dubious interpretation of the Constitution, but the former seems perfectly reasonable. Regardless, there is a clear difference in immediacy to yelling fire in a crowded theater versus telling men not to obey their draft callup. The first could result in immediate deaths, while the second is more of an irritation to the government. Yet the entire Supreme Court endorsed the comparison.

If that sounds surprising given the broad freedoms Americans have today, things would get even worse after the Schenck decision. In 1927 the Supreme Court ruled in Whitney v. California that:

That the freedom of speech which is secured by the Constitution does not confer an absolute right to speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license giving immunity for every possible use of language and preventing the punishment of those who abuse this freedom, and that a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the public peace, or endanger the foundations of organized government and threaten its overthrow by unlawful means, is not open to question. Gitlow v. New York, 268 U. S. 652, 268 U. S. 666-668, and cases cited.

Terrifying stuff. Under that logic a host of statements could be considered illegal. Even a true statement could be against the law if it “disturbed the public peace”. Happily, Whitney v. California represents the nadir of American free speech. Today, the standard is far different. Even the justice who wrote the fire comparison, Oliver Wendell Holmes, seemed to regret it, and would later support broader rights to free speech. Current Americans are free to say that income tax is theft and it shouldn’t be paid, or that you shouldn’t register for the selective service, or follow a whole host of government regulations. The change occurred in the 1969 case Brandenburg v. Ohio, which established that

Freedoms of speech and press do not permit a State to forbid 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.

That standard - imminent lawless action - is still in force today.

So next time a friend says you can’t yell fire in a crowded theater, take the opportunity to watch someone’s eyes glaze over by explaining this history.