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Please Stop Using the ‘Fire in a Crowded Theater’ Metaphor

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.

Comments

  1. eric says

    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 analogy to Schenck’s acts is absurd, true. I think people like the example because it gives a very reasonable and inutitive understanding of when speech can be restricted. In that respect, its a good standard. I don’t mind that it’s an exemplar. I mind that people seem forget that there’s very little speech that is actually like falsely shouting ‘fire’ in a crowded theater.

  2. Sastra says

    Yes; people who make an argument from analogy often forget that the crucial issue is whether the analogy fits the particular case in the relevant way. What you usually get instead is category error.

  3. says

    What’s always bugged me about that phrase is when people leave off the “falsely” part. Because, if the theater is actually on fire, yelling “fire” is actually a helpful tip.

  4. says

    I stopped using that metaphor when I noticed the abuses of it (particularly the Heckler’s Veto version) were more common than legitimate uses.

  5. savagemutt says

    Slightly OT perhaps:

    I don’t know anything more about the case than what you’ve written, but I wonder if the Civil War draft riots being within living memory had an effect on the justice’s view of “Clear and present danger.”

  6. says

    I mind that people seem forget that there’s very little speech that is actually like falsely shouting ‘fire’ in a crowded theater.

    Indeed, Eric. There’s falsely shouting ‘fire’ in a crowded restaurant, a crowded meeting hall, a crowded concert auditorium, a crowded church…. :-)

    Seriously– hear fucking hear to this entire post. I would not want to tally how many times I’ve heard this metaphor used, and on not a single occasion has it been apt. It has, in every last situation, been about speech that makes people angry. Anger is not like fire, much as the angry would sometimes prefer it to be.

  7. divalent says

    But usually people bring this up because it is *not* analogous to the particular situation under discussion, almost always by someone arguing *against* restriction of speech. It’s used to show that 1) they do recongnize that there can be some limits to what can be permitted, and 2) to contrast the differences to indicate why that limit doesn’t exist in the situation under discussion.

    [but I did not know, and find it highly ironic. that when it was first used by the SCOTUS, it was employed to show the similarities in a case where only a disingenuous characterization of the situation could show that there were similarities.]

  8. says

    I actually don’t mind the argument overly much since I rarely hear it used as an analogy. Usually I hear it as a response to someone claiming that restrictions on the freedom of speach are never ever ever ok no matter what. Someone else then points out that there actually are cases where restrictions are perfectly reasonable (shouting fire, death threats, telling clients at work to bugger off even if they totally deserve it and so on). The point is not that the case in question is analogous to these, but rather that the freedom of speech is not and should not be absolute. I usually see it used as an attempt to get conversations out of the overly simplistic either-you-believe-in-free-speech-or-you-are-a-fascist mode that they so often get stuck in and turn them towards more constructive discussions about why we value free speech, when might these values conflict with other values and how to strike a balance.

  9. says

    … I wonder if the Civil War draft riots being within living memory had an effect on the justice’s view of “Clear and present danger.”

    It could have (given the crappy logic underlying the ruling), but it shouldn’t have. Those riots were not triggered by a false speech or news item; they were triggered by the normal reporting of real events.

  10. says

    But usually people bring this up because it is *not* analogous to the particular situation under discussion, almost always by someone arguing *against* restriction of speech. It’s used to show that 1) they do recongnize that there can be some limits to what can be permitted, and 2) to contrast the differences to indicate why that limit doesn’t exist in the situation under discussion.

    I have never once heard it used that way. I’m sure there are people out there who think that no restriction on free speech is legitimate, short of prohibiting falsely shouting ‘fire’ in a crowded theater….but never in my life have I talked to one.

    Both sides would be much better suited to talk about “fighting words,” anyway. It’s usually a lot closer to the point. Still not very close (considering that the speech being considered for restriction is generally not even directed from one specific person to another, let alone a challenge yelled in the person’s face) but closer.

  11. eric says

    Both sides would be much better suited to talk about “fighting words,” anyway.

    Yep. AFAIK those sorts of restrictiions are still on the books in many US states. I can historically see a legitimate state interest in stopping such speech. In pre-20th century societies, your honor and reputation was much more socially important for pragmatic things, like getting a job or a bank loan. So defending it against false accusations could be seen as reasonable. In modern societies reputation is far less important; banks and employers don’t care if some random person claims I’m illegitimate. If there is some question about my past illegal behavior, they can look up my police record if they want. They can call my alma mater if they want official education records. And so on. Modern record-keeping and access to ‘ground truth’ has rendered these sorts of “crimes” far less practically damaging than they used to be. So I don’t really see much of a need for such restrictions any more.

    Now, why should we care about the role reputation played in the past? Why does any of what I’ve said above matter? Well, because it means that efforts to get 3rd world countries to adopt our standards of free speech may fail. In places where people and institutions don’t have the access to the sort of extensive record-keeping and ground truth that our institutions have, we should expect that personal reputation is going to be more practically important and that it may be protected by speech-limiting laws. We aren’t going to get rid of fighting words laws and onerous slander and libel laws in such places simply by telling people that free speech is good. We’re going to have to replace reputation with modern institutions first. We need to help them improve their (information) infrastructure first, before we can expect them to adopt liberal, broad notions of free speech.

  12. inquisitiveraven says

    That was the standard that the court established for when the government could suppress the free speech writes

    “Writes” Ed?

    As DC Wilson noted, most people forget that the important part of the metaphor is the word “falsely.”

    Another thing that people often, if not exactly forget, don’t realize is that the First Amendment applies to the Federal government (specifically Congress). It does not apply to the owners of private venues. Thus CPPS’ example of a restriction against telling a client at work to “bugger off” no matter how much said client deserves it is one that would be applied by the employer, not the government.

  13. says

    @ inquisitiveraven

    What if a female employee is chatting with a male client and he mentions something about his wife and so the employee replies with a comment about her wife. If the client is a jerk and raises a stink is it solely up to the company to decide how to handle this or might the government have a role to play in protecting the employee? What if an employee chastises a client for sexist or racist comments? What about discusions between employees regarding unionizing? Can these situations be addequately addressed soley by appeal to company policy or might they involve discussions of free speech rights? I agree that generally the rules governing speech at work are a matter of company policy, but they are not always.

  14. wscott says

    I wonder if the Civil War draft riots being within living memory had an effect on the justice’s view of “Clear and present danger.”

    Good point. Still a bad analogy, but not the total non sequitur it seems to modern eyes.
    .
    Also OT, but the “fire in a crowded theater” meme is complete crap from a human behavior perspective as well. Think of all the times you’ve been someplace where a fire alarm went off; how many people panicked? If the number is greater than zero I’d be surprised. In reality, someone shouting fire in a movie theater is more likely to get popcorn thrown at him than to start a stampede. People panic very rarely, and generally only under specific circumstances (they feel trapped, isolated & helpless). The opposite reaction is far more common: people tend to under-react to warnings unless they hear it from multiple, trusted sources and/or they see the smoke themselves. Ironic as it may seem, the hardest part in the aftermath of any disaster or emergency is usually to get people *moving.*
    .
    I highly recommend Amanda Ripley’s book “The Unthinkable: Who Survives When Disaster Strikes And Why” to anyone interested in how people’s mind work during disasters.

  15. says

    The “yelling fire in a crowded theater” analogy came from a real incident in Italy where someoen did this and caused several trampling deaths. There have been several other stampedes that resulted in deaths from other causes since, though they’ve become less common thanks to designers taking measures against them. THis is a real threat, though.

  16. abb3w says

    The current principle suggested from Chaplinski v NH is “which by their very utterance inflict injury or tend to incite an immediate breach of the peace”, that “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality”.

    Given that the”Yelling Fire in a Crowded Theater” example is a visceral exemplar, merely asking people to stop using it because you consider it absurd seems (even from your FTB bully pulpit) likely unlikely to be effective at driving the meme to obsolescence. (Pissing into the inferno? Eh.) It would seem a faster and more efficient way to drive it out of the marketplace of ideas is to introduce a new one, that more effectively captures both the sense of the law and the imagination.

    However, thinking up such a new idiom isn’t as easy as making the suggestion that someone do so.

  17. typecaster says

    Another thing that people often, if not exactly forget, don’t realize is that the First Amendment applies to the Federal government (specifically Congress).

    You might want to re-read the 14th Amendment. This hasn’t been true for close to a century and a half.

  18. says

    The way I hear this argument used almost always used is to justify a specific speech restriction that the person advocates, and that is how it was used in the conversation I referred to. He was arguing in favor of speech restriction X and flippantly said, “Well, you can’t shout fire in a crowded theater, so we already place limits on free speech.” And that is almost always the way I have heard it used — the first amendment is not unlimited, so therefore it’s okay to restrict speech in the way the person making the argument wants to do. Never mind that the restriction they favor is nothing even remotely like a restriction to prevent a clear and present danger of violence.

  19. John Horstman says

    Like #8, I mostly hear it deployed to demonstrate that we don’t value completely-unrestricted speech, so a proposed restriction on speech shouldn’t be dismissed out of hand. This actually does sound like how it was used in the discussion you were having, Ed (though it may have been poorly deployed there). As a broadly-understood shorthand for “speech that is likely to result in imminent danger or harm to others”, it doesn’t strike me as a terrible example to use. If someone’s using it, badly, as an analogy, then jump on that person for doing so, but I think it still works fine as a counter to the idea that speech should not be universally unrestricted (which is also how Holmes used it – his decision on the actual matter may have been deeply flawed, and he’s technically wrong, as I’ve certainly heard people argue for a total lack of restriction, but he’s not analogizing there as much as he is positing that completely-unrestricted speech isn’t a good idea).

  20. bobcarroll says

    Why not use “yelling ‘fart’ in a crowded elevator,” instead? Or perhaps just the fart itself? After all. noisily farting is equivalent to most folk’s speech, and indeed can be most eloquent.

  21. dingojack says

    How about: ‘falsely yelling “Ticking Time Bomb” in a crowed elevator’?

    :D Dingo
    ——–
    SMH 28 Jan 2013.
    SAO PAULO: Brazilian authorities have called for a rapid investigation into a fire that killed at least 233 young party-goers and injured more than 90, bringing the President, Dilma Rousseff, to the verge of tears.
    Ms Rousseff has declared three days of mourning.
    The blaze at the Kiss nightclub in the southern city of Santa Maria was started by a band’s pyrotechnic display about 2am.
    ”People were screaming and trying to run to the exit,” Luciene Louzeiro, a survivor who was near the stage when the fire started, said. ”It was horrible. ”
    Firefighters responding to the blaze on Sunday had trouble getting inside because bodies partially blocked the club’s entrance.”
    Television images showed black smoke billowing out of the club as shirtless young men who had attended a university party joined firefighters using axes and sledgehammers to pound at windows and exterior walls to try to free those trapped inside…..

    CNN 21 Feb 2003
    “Ninety-six people died Thursday in a fast-moving fire at a Rhode Island nightclub, Gov. Don Carcieri said Friday afternoon, adding that only a handful of the bodies have been identified.
    With 35 people in critical and serious conditions, the governor said it would not surprise him if the death toll were to rise above 100.
    Because some bodies are badly burned, Carcieri said, family members might have to wait for DNA testing to learn their loved ones’ fate.
    Dorothy Palazzo is searching for her cousin, who attended the music show at The Station concert club in West Warwick.
    “We’re hoping that he walks in that door,” she said. “He’s got a great wife, beautiful children waiting for him to walk through the door and come home.”
    Other families made the rounds of hospitals and morgues, several showing photographs of the missing in hopes that someone saw them escape the club.
    Pyrotechnics used by the heavy metal band Great White ignited the inferno. Owners of the nightclub have said they did not know the band planned to use fireworks, but Great White lead singer Jack Russell said, “Our tour manager set that up with the club….

    Yep zero panic there I bet.

  22. drr1 says

    Good post, Ed. I have some fun with this every time we cover the history of incitement (just last week, in fact). Because falsely yelling “fire” in a crowded theater is just like the relatively silly stuff Schenck published in his flyer. There are useful teaching points in the decision, but Holmes’s oft-cited phrase isn’t one of them.

  23. Ichthyic says

    Never mind that the restriction they favor is nothing even remotely like a restriction to prevent a clear and present danger of violence.

    Your argument against the superficial nature of the “fire” meme is a good one, but the real argument starts when we try and decide what constitutes a reasonable expectation of “clear and present danger”, and even whether THAT should apply.

    I’m curious; what is the argument FOR maintaining free speech limits based on incitement? I want to see Ed present that one.

  24. Ichthyic says

    …oh, and before anyone says it out loud…

    yes, obvious trap is obvious, and intentional.

  25. wscott says

    @ Ace #15: Yes, that actually happened. In 1913. More recent examples are hard to find.
    @ Dingo #21: Those were both actual fires, where the threat was real and clearly visible, not just a shouted warning.
    .
    The media love to use the word “panic” because it sells copy; but talk to the people who were actually there and you often get a very different picture. Read accounts of people who made it out of the twin towers on 9/11, and they all talk about how orderly everyone was in the stairwells. Not necessarily because they were all so brave; most people were in shock. Sociologists have known this since at least the 1977 Beverly Hills Supper Club Fire that killed 167 people, many of whom died because they failed to evacuate even after smoke was visible.
    .
    I’m not saying people never panic, obviously. But it is by far the exception rather than the rule. For every one person trampled to death in a panic, there are probably 10-100 people someplace else who died because they under-reacted. Yet we think the numbers are the other way around, and plan accordingly. To quote Amanda Ripley:

    “When you think about it, panic is not a very adaptive behavior. We probably could not have evolved to this point by doing it very often. But the enduring expectation that people will panic leads to all sorts of distrust on the part of neighbors, politicians, and police officers. The idea of panic, like the Greek god for which it is named, grips the imagination. The fear of panic may be more dangerous than panic itself.”

    Sorry to spend so long on a tangent, but I’ve done a lot of reading on this topic and it’s a pet peeve of mine. Why does it matter? One last quote, from Tom Drabek, former Professor of Sociology at University of Colorado, because I happen to have his book “The Human Side of Disaster” handy:

    Too often, the myth of panic guides public officials. You see, they incorrectly assume that if people are warned, mass panic will occur. The result? Time is lost. And often, so are lives.”

  26. dingojack says

    Nope, no-one ever gets crushed by panicky crowds fleeing unseen threats at Hindu Festivals, Muslim Hajj, rock concerts or football matches, never ever. ‘Panic’ is completely imaginary. I’m sure those two examples given were just full of calm people marching out in tranquil lock step with each other.
    Zero incidence? Hardly.
    Dingo

  27. Homo Straminus says

    DJ, I’m confused. Are you intentionally trolling? Because last I knew you were a voice of reason, and analogies+ does nothing to prove a point. Nevermind that the analogies presented involved real dangers and not “falsely shouting ‘fire!’”.

    U that good at trolling, maybe? I hopes?

  28. wscott says

    Seriously Dingo, are you even bothering to read the posts you’re replying to? Or did you somehow miss the part where I said: “I’m not saying people never panic, obviously. But it is by far the exception rather than the rule.”
    .
    Since you mention it, the hajj stampedes in Mecca are a textbook case of the limited circumstances under which true panic can occur. Grossly abbreviated version: people have to feel 1) trapped, 2) powerless, and 3) socially isolated. In Mecca, some fairly simple architectural changes and better event planning put in place after the 2006 stampede have largely mitigated the problem.
    .
    As for rock concerts and soccer matches: tragic as those are, people getting crushed trying to get *in* to get better seats are not an example of panic.

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