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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:

  1. 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).
  2. 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.
  3. 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.
  4. 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.

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Comments on “Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'”

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103 Comments
John Fenderson (profile) says:

Thank you

Thank you, Mike. This has long been a pet peeve of mine.

I think it perpetuates because there is a kernel of truth embedded in it (as is the case with the best myths and misnomers).

The kernel of truth is this: it is not permissible to engage in speech that is intended or will clearly result in immediate risk of physical harm to people. The words “immediate” and “physical harm” are important there.

As an interesting aside, there have been at least two sociological studies that show that literally yelling “fire” in a crowded theater does not result in the panic that people envision it does.

Gwiz (profile) says:

Re: Confused

Who the fuck shouts fire anywhere (never mind a theater) when there is no fire?

Actually, it’s a self defense trick that is taught regularly:

From Impoweryou.org:


Just Yell Fire,JYF, is an organization that trains self defense instructors and I will take the training in a few weeks. Why yell fire? Because that word is more likely to get attention than ?rape? or ?help?

Anonymous Coward says:

It’s been misused for far too long, and I agree that it’s time it stopped.

It’s not being misused. It stands for the proposition that freedom of speech is not absolute, and laws can indeed limit freedom of speech.

The fact that the “clear and present danger” test put forth by the unanimous Court in Schenck has changed over the years is irrelevant since the FACT REMAINS that you still can’t yell fire in a crowded movie theater. Why? Because the freedom of speech is still not absolute.

I know you think that “no law” leaves no wiggle room, but the fact remains that “abridging the freedom of speech” does. A law against yelling fire in a crowded theater doesn’t abridge freedom of speech.

Nice try but people using the phrase today are using it correctly, just as Justice Holmes did. All it means that freedom of speech is not absolute. Period.

John Fenderson (profile) says:

Re: Re:

All it means that freedom of speech is not absolute. Period.

Then just say that.

The phrase is typically used as an example of the limits of free speech — and as such, it fails. It is not such an example.

A better example would be that if you are in front of an irate crowd, you can’t yell instructions for them to “kill the bastards”.

Anonymous Coward says:

Re: Re: Re:

The phrase is typically used as an example of the limits of free speech — and as such, it fails. It is not such an example.

Freedom of speech is not absolute, as evidenced by the fact that you can’t yell fire in a theater and cause a panic. It’s a perfect example of the principal, so I don’t get your point.

Not an Electronic Rodent says:

Re: Re: Re: Re:

It’s a perfect example of the principal, so I don’t get your point.

For someone usually so obtusely picky about exact wording you seem to have a blind spot on this one…

as evidenced by the fact that you can’t yell fire in a theater and cause a panic (emphasis added)

The quote doesn’t mention panic at all. Absent that the quote is rather less accurate wouldn’t you say?

Michael (profile) says:

Re: Re:

“the FACT REMAINS that you still can’t yell fire in a crowded movie theater”

Why not? Do you live in a state with a law against yelling fire in theaters? This specific action is likely not going to end in you being imprisoned or fined. As noted above, studies have been done that indicate that doing this will not put anyone in imminent harm. Knowing this would be a pretty good defense – even if someone was actually hurt.

“A law against yelling fire in a crowded theater doesn’t abridge freedom of speech”

And yet, no such law actually exists (not in Connecticut, at least). So saying: “you cannot yell fire in a crowded theater” has little support from actual law behind it.

Michael (profile) says:

Re: Re: Re: Re:

I am saying that evidence suggests that yelling ‘fire’ in a theater is unlikely to cause a panic.

Since there is no law specifically saying you cannot yell ‘fire’ in a theater, doing so it unlikely to result in you being found guilty of a crime.

I challenge you to find the law that yelling ‘fire’ in a theater breaks. If you do, please post it.

Michael (profile) says:

Re: Re: Re:3 Re:

I cannot find the “you can’t cause a public disturbance” law in my library here either. Do you have any additional information on it? I’m looking at CT law – are you talking about a federal “you can’t cause a public disturbance” law?

Specifics, please.

I have a local noise ordinance listed, but I don’t think I can yell that loud.

G Thompson (profile) says:

Re: Re: Re:5 Re:

Wow.. I think you need to go back to “reading legislation for Dummies 101” class and get your money back

lets look at the elements of the “infraction” shall we

Sec. 53a-181a. Creating a public disturbance:

(a) A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior; or (2) annoys or interferes with another person by offensive conduct; or (3) makes unreasonable noise.

Firstly you need INTENT.. you know the mens rae of actually specifically meaning to cause something to occur.

secondly your action(s) need to cause: inconvenience OR annoyance OR alarm OR recklessly creating a risk, in some person

thirdly we come to the specificity of what the actual intentional action must of been done via
(1) engages in fighting or in violent, tumultuous or threatening behavior; or
(2) annoys or interferes with another person by offensive conduct; or
(3) makes unreasonable noise.

So we need to have intent + inconvenience (or other highly subjective effects) + a choice of 3 specific scenarios before any infraction can be chargeable.

Sadly yelling fire in a theatre might fall under “unreasonable noise” but the intent of the person to utter that “noise” would not be to cause any of the subjective elemental effects but instead to give information to make people aware of imminent danger.

Anonymous Coward says:

Re: Re: Re:5 Re:

ROFLMAO! Really? You need to put down the bong and read up on First Amendment limitations. I cited you this: http://law.justia.com/codes/connecticut/2005/title53a/sec53a-181a.html It is a law that explicitly limits speech. The Supreme Court has recognized and condoned many, many limits on speech as being constitutional. Welcome to planet earth, you’ve obviously not been here long.

John Fenderson (profile) says:

Re: Re: Re:5 Re:

That’s not actually true.

Many (all?) constitutional rights can be exercised in a way that impinges on other constitutional rights. When this happens, the law is the mechanism by which we as a society decide how to balance the two. In the course of balancing them, one or the other (often both) rights become limited in scope.

This is inevitable. No constitutional right trumps another, and so no constitutional right is absolute.

out_of_the_blue says:

Re: Re: Re:2 Common law applies.

You’re arguing from mere statute. In the stated conditions of falsely yelling fire in a crowded theater, with the implicit endangerment of people rushing to get out, then I guarantee that a jury of your peers (actually likely older and wiser people) will find you liable for any and all injuries plus loss of theater revenue and the expense of fire truck and police — and the latter will find a statute to charge you with, they do that all the time.

Legalisms. All we get here are weenie legalisms, purpose of which is to undermine common sense.

Not an Electronic Rodent says:

Re: Re: Re: Re:

How about informing people that there is, in fact, a fire? The quote doesn’t specify “when there’s no fire”. Would you still expect it to be illegal if it were true? Alternatively, would it still be illegal if the yelling of “Fire!” garnered the response “f*ck off loser” and no panic whatsoever?

Anonymous Coward says:

Re: Re:

Nothing is absolute, but freedom of speech is the foundation of a free society and its exceptions should be few and far between, reserved only for the most egregious of the faults that can’t possibly bring enough good from it.

Also screaming fire in a theater can put people in harms ways, but then again it may not when was the last time you saw anybody get harmed by such pranks?

I don’t recall any instance of ever happening in my life, I never heard, read or saw something like that and that is not to say that it never happened, but it happens so rarely that laws against it that erode the principal freedom of speech should never be allowed because there is no such a problem that needs a law to fix it and even if that was the case the law should be temporary so it goes away when it is no longer needed.

Unless of course you don’t believe freedom of speech is important and can be taken away.

Anonymous Coward says:

Re: Re: Re:

Not just us, the Founders thought that as well. Little did they know that no matter how specific and simple to understand they made it, there’d be people like you who would find a way to make ‘no law’ mean something other than ‘no law’.

And my point, which you never seem to catch, brilliant attorney that you are, was that while some might argue that the First Amendment is absolute because it says “no law,” that doesn’t mean that there’s not lots of wiggle room in the Amendment. That wiggle room has been used to expand its meaning. Heck, it says it only applies to “Congress,” (“Congress shall make no law”) but today the Court says that the 14th Amendment Due Process Clause means that it applies to the states as well. Why? Because they said so.

Jake says:

Agreed. I prefer “Careless talk costs lives”; it gets the same message across in fewer words and isn’t so clich?d.

Which is not to say I’m in favour of new laws regulating speech on the Internet, mind you; we already have laws against soliciting murder, inciting riots and (in the US) reckless endangerment that have been working just fine for decades.

Josh in CharlotteNC (profile) says:

Re:

So you think it’s legal to intentionally cause a panic in Connecticut? LOL!

Are you claiming that it is illegal to intentionally cause a panic over something you know not to be true?

I can think of a few things that would cover. Panic of terrorists carrying more than 3 ounces of liquid onto planes. Panic over job losses due to copyright infringement. Panic over cyber-bullying/attacks/crime/anything.

Any of those sound familiar?

fairuse (profile) says:

Re:

Well, Arthur this site attracts an interesting subset of Troll — Lawyer.

Site’s purpose is to inform everyone about issues — law and courts, Capital Hill are the tip of the iceberg of articles that help not-a-lawyer-and-those-who-watch-lawandorder understand the crazy that exists behind the pretty talking heads. Try search: T-mobile, try random senator name, try privacy, try Amazon … endless fun until U try Internet.

So yes your statement is true for the subset troll lawyer. /I don’t have a humor gene.

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