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The First Amendment and “Falsely Shouting Fire in a Crowded Theater” .

Posted By Cliff Tuttle | July 19, 2015

No. 1,188

HolmesEverybody knows the aphorism about falsely shouting fire in a crowded theater.  I am pretty sure that I heard it for the first time in class in elementary school and then countless times thereafter.  The concept is universally accepted, or is as close to universal acceptance as any such statement is likely to be.

Its first use is generally credited to Oliver Wendell Holmes in his opinion in the 1919 case of Schenck v. United States, 249 U.S. 247. That case involved the enforcement of the Espionage Act. Defendants had  distributed leaflets to draft-age men urging them to resist induction.  In his opinion, Holmes stated that the First Amendment did not protect speech that was inciting the hearer to commit a crime. As such, it was a criminal attempt.  In asserting that free speech had such limits, he stated:

“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.”

Recently, law professor Carlton F. W. Larson published a paper titled “‘Shouting Fire in a Theater’:The Life and Times of Constitutional Law’s Most Enduring Analogy.” In it, he noted that Holmes probably borrowed the phrase from a federal prosecutor, Edwin Wertz, in his 1918 prosecution of famed Socialist Eugene V. Debs for similar violations of the Espionage Act. Resistance to the draft was viewed by prosecutors under the statute as aiding and abetting the enemy and a crime.

Moreover, Larson points out, there were numerous incidents of panic, sometimes resulting in death, from a rash of false cries of fire in theaters.  The earliest recorded such fatality, interestingly, was a 1911 panic in a theater in Canonsburg.  However, in an era when fires were commonplace due to lighting by gas flames and flammable construction materials, the threat of panic from such a prank was, Professor Larson observes, taken much more serious than it is today.  The thought of such a calamity was fear-inducing.

After Holmes’ Schenk opinion, the phrase caught fire and has been used countless times by judges, prosecutors, lawyers, elementary school teachers and just about everybody else to signify speech that is beyond the protection of the First Amendment.

Interestingly, the holding in Schenk has been under assault ever since but apparently has managed to survive, although subject to qualification.  In the era of terrorist attacks, flaunting a law involving national security is still not protected speech.

On the other hand, outside the national security arena, in Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme  Court held that the government cannot punish inflammatory speech that is directed to incite or is likely to incite imminent lawless action.

If there any reported cases of a defendant who shouted fire in a crowded theater defending on First Amendment grounds, it is not revealed by Professor Larson’s exhaustive review of cases where the maxim was repeated.

CLT

TWEETED TODAY:  “Sugar and spice and everything nice, that’s what diabetics are made of.”  — CLT

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CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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