So, everyone thinks they know a bit of constitutional law. And in many cases they actually do. How many senators does your USA state get? Who is the Head of State of Canada? These are questions that a great many people can answer correctly. But as soon as the answer gets slightly more complicated, we reach a weird zone where people aren’t able to admit we are in “I have no idea” territory yet, despite the fact that they clearly have no idea what’s going on.
Case in point: Can you or can you not shout, “Fire!” in a crowded theater? Spoiler alert: YES!
When people misquote something related to fires and theaters and frozen peaches, they are referencing Oliver Wendell Holmes’ language in the decision of US v Schenck. That decision was about whether it was permissible to jail under anti-espionage laws the author of a peaceful pamphlet arguing that USA citizens should peacefully attempt to overturn the WW1-era draft. Holmes argued that yes, if you oppose a draft during time of war, even if you do so peacefully and seemingly reasonably, you can be found guilty of something like sedition and jailed. The argument that the First Amendment protects such expression and political behavior was invalid, according to Holmes. While expanding on his views without making reference to the facts of the case – content of a judicial opinion called obiter dicta that is not binding but helps lower-court judges understand an appellate judge or justice’s reasoning for use in deciding cases that have some similar elements but aren’t exactly the same – Holmes said:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
But he didn’t say this famously, because if he said this famously, people would actually get the fucking quote right. Though I’ve been annoyed at misuse of Schenck for many years now, the quote that gets me writing today is from my best beloved Wonkette:
Republicans have quickly developed a pattern of weaponizing the #MeToo movement for their own political ends, while simultaneously crying “witch hunt” in a crowded adult movie theater whenever one of their own is credibly accused.
What’s wrong with this? Well, apart from being funny and delightful in every comedic way, it terribly, terribly repeats the same mistake that everyone seems to repeat when they try to quote Holmes: they neglect the qualifier “falsely”. What’s even worse for Wonkette is that in this particular case, retaining “falsely” actually improves the metaphor. There’s no reason to leave it off. Yet for some reason, people seem to think that yelling “Fire” in a crowded theater cannot be protected by the 1stA.
And yet it can. Yet it is. All you would have to do in 1920 to shout, “Fire!” in a crowded theater in a manner protected by the 1stA is to shout it truthfully. Or hell, you can even shout it falsely while reasonably believing it to be true (for instance if someone sets off a smoke bomb and you mistakenly assumed that the smoke was the result of actual fire).
There are other things to say about the role of dicta in opinions and the fact that Schenck was later overturned, but those things are arguably less relevant (since Schenck was never about “deciding” the extent of fire-shouting protections) than the simple fact that no one seems to get the quote right. Assuming that – in a real case brought today where the facts were as Holmes presented in his hypothetical (which, given Brandenburg, is not at all a safe assumption) – the protections for shouting, “Fire!” in a crowded theater today would still be similar to what Holmes envisioned in 1919, shouting, “Fire!” in a crowded theater is actually protected by the first amendment so long as you actually, reasonably believe that a fire was present in that theater. Moreover, that’s just the extent of the first amendment protection. The 1stA doesn’t bar the government from outlawing false cries of “Fire!” in crowded spaces, but neither does the 1stA actually restrict such cries on its own. In the absence of a specific law on fire-crying, even falsely shouting, “Fire!” in a crowded theater is perfectly legal.
The 1stA doesn’t outlaw any expression on the part of citizens of, residents of or visitors to the USA.
So when you read someone say something like, “You can’t yell, ‘Fire!’ in a crowded theater,” go ahead and link them back here. That’s just bad constitutional law, passed around by people who don’t know quite enough to realize they’ve gone beyond the limits of their knowledge.