Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'
from the dead-and-buried dept
You hear the phrase all the time, often being used to explain why there are “limitations” on the First Amendment: “You can’t yell fire in a crowded theater.” It’s come up quite a bit recently, in response to both the “Innocence of Muslims” video and the @comfortablysmug guy on Twitter tweeting bogus claims. However, the quote is almost always taken out of context, and all too often used as a crutch to defend blatant censorship that does, in fact, violate the 1st Amendment.
Back in September, Ken White wrote a great piece pointing out why the quote is used out of context by those in favor of censorship, and now Trevor Timm is pointing out why it’s time for this phrase to be kicked aside. Both articles are absolutely worth reading, and remembering the next time someone uses the “fire in a crowded theater” line.
As the pieces both note, the original quote was said by Supreme Court Justice Oliver Wendell Holmes in a case, Schenck v. United States, but there are a few important facts often left out:
- The case had nothing to do with fires or theaters. The quote was Holmes giving a general statement that has no actual bearing on the case or precedential value in court (“dicta” in the legalgeek speak).
- The case is, to this day, considered one of the more odious and regretful decisions by the Supreme Court, in which they locked up a member of the Socialist Party for distributing incredibly tame pamphlets to give to prospective draftees about their rights during World War I.
- The case was later effectively (though not explicitly) overturned by Brandenburg v. Ohio and the ruling in the case itself is no longer binding caselaw anyway.
- Holmes himself, very soon after this decision, issued another decision that argued quite differently in Abrams v. United States, where he made the much more reasonable and useful argument:
“The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
As Ken White argues in his piece:
Holmes’ quote is the most famous and pervasive lazy cheat in American dialogue about free speech.
It’s been misused for far too long, and I agree that it’s time it stopped.