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Shouting fire in a crowded theater

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.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...

's opinion in the United States Supreme Court case Schenck v. United States
Schenck v. United States
Schenck v. United States, , was a United States Supreme Court decision that upheld the Espionage Act of 1917 and concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I. Ultimately, the case established the "clear and present...

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 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, 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
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...

 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

.

The Schenck case


Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917
Espionage Act of 1917
The Espionage Act of 1917 is a United States federal law passed on June 15, 1917, shortly after the U.S. entry into World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code but is now found under Title 18, Crime...

, (amended with the Sedition Act of 1918
Sedition Act of 1918
The Sedition Act of 1918 was an Act of the United States Congress that extended the Espionage Act of 1917 to cover a broader range of offenses, notably speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds...

), to distribute flyers opposing the draft during World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...

. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger
Clear and present danger
Clear and present danger was a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...

" to the government's recruitment efforts for the war. Holmes wrote:
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
Judicial review in the United States
Judicial review in the United States refers to the power of a court to review the constitutionality of a statute or treaty, or to review an administrative regulation for consistency with either a statute, a treaty, or the Constitution itself....

 by Brandenburg v. Ohio
Brandenburg v. Ohio
Brandenburg v. Ohio, , was a landmark United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action...

in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action
Imminent lawless action
"Imminent lawless action" is a standard currently used, and that was established by the United States Supreme Court in Brandenburg v. Ohio , for defining the limits of freedom of speech. Brandenburg clarified what constituted a "clear and present danger", the standard established by Schenck v....

 (e.g. a riot
Riot
A riot is a form of civil disorder characterized often by what is thought of as disorganized groups lashing out in a sudden and intense rash of violence against authority, property or people. While individuals may attempt to lead or control a riot, riots are thought to be typically chaotic and...

). 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.

Literal examples


People have falsely shouted "Fire!" on numerous occasions, such as at the Royal Surrey Gardens
Royal Surrey Gardens
Royal Surrey Gardens were pleasure gardens in Kennington, London in the Victorian period, slightly east of The Oval. The gardens occupied about to the east side of Kennington Road, including a lake of about . It was the site of Surrey Zoological Gardens and Surrey Music Hall.The gardens were the...

 Music Hall (London) in 1856, in Harlem in 1884, and in the Italian Hall disaster
Italian Hall disaster
The Italian Hall Disaster is a tragedy that occurred on December 24, 1913 in Calumet, Michigan...

 of 1913, which left 73 dead.

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
Zechariah Chafee
Zechariah Chafee, Jr. was an American judicial philosopher and civil libertarian. An advocate for free speech, he was described by Senator Joseph McCarthy as "dangerous" to the United States...

 and discussed his work "Free Speech in Wartime" According to Fenan, Holmes change of heart influenced his decision to join the minority and dissent in the Abrams v. United States
Abrams v. United States
Abrams v. United States, 250 U.S. 616 , was a 7-2 decision of the United States Supreme Court involving the 1918 Amendment to the Espionage Act of 1917, which made it a criminal offense to urge curtailment of production of the materials necessary to the war against Germany with intent to hinder the...

 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.

In A People's History of the United States
A People's History of the United States
Chapter 7, "As Long As Grass Grows or Water Runs" discusses 19th century conflicts between the U.S. government and Native Americans and Indian removal, especially during the administrations of Andrew Jackson and Martin Van Buren....

, Howard Zinn
Howard Zinn
Howard Zinn was an American historian, academic, author, playwright, and social activist. Before and during his tenure as a political science professor at Boston University from 1964-88 he wrote more than 20 books, which included his best-selling and influential A People's History of the United...

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.