Free Speech Pro-Tip: You Can Yell Fire In A Crowded Theatre

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Free Speech Pro-Tip, By Techdirt

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No discussion about free speech gets very far without someone busting out the idea that “you can’t yell fire in a crowded theatre”. It’s a phrase that’s irritated actual free speech experts for years: it adds nothing to the discussion, and it’s not even true — there are plenty of times when you can (not the least of which being if the theatre is actually on fire!) Moreover, the phrase itself is a relic of an old, awful, and overturned Supreme Court ruling that put someone in jail for criticizing the mandatory military draft in the First World War. The inimitable Ken White dug into the phrase’s uselessness and horrible legacy in a 2012 Popehat post and, more recently, an episode of the Make No Law podcast.

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Comments on “Free Speech Pro-Tip: You Can Yell Fire In A Crowded Theatre”

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Dan J. (profile) says:

” It’s a phrase that’s irritated actual free speech experts for years…” Then those so called experts need to get a friggin’ clue. Yes, you can shout “Fire!” in a theatre if the place is actually on fire or if you’re in a play, etc. You can shoot someone if they’re trying to shoot you first. Hell, you can even drop an atomic bomb on a city if you’re in a war and have been legally ordered to do so. Outside of physics, nothing is absolute. The phrase clearly refers to causing a panic by falsely convincing people their lives are in danger when they are in fact not in danger. If you object to that, your pedantic ass needs to get a life.

Leigh Beadon (profile) says:

Re: Re:

You should consider reading the Popehat post discussing the phrase in more detail.

The point is that even if it’s taken at its most limited meaning which you describe, it still adds nothing to a debate about free speech. It says nothing about limitations on other forms of speech. And invoking it to support calls for other limitations on speech is sloppy and dangerous – as evidenced by its original usage, which was to put someone in jail for distributing pamphlets that opposed the mandatory military draft. Yes, that’s the original “yelling fire” – writing a pamphlet that criticizes the government.

Wnt says:

Re: Re: Re:

I was going to tell them this, but you beat me to it. That bogus metaphor was their excuse for taking a PRESIDENTIAL CANDIDATE (Eugene Debs) and throwing him in jail for HIS POLITICAL BELIEFS. In order to make the world safe for the ultra rich to have poor people of all nationalities rounded up and sent to die by poison gas while pretending they were at war with each other — when in fact the only threat to their lives was the rich elite that drafted them!

The big joke is that, even in the early 1900s, people who falsely yelled “Fire!” almost NEVER had legal problems. Why? Because they said they smelled smoke, or they heard someone else yell it first. Law enforcement was never effective against this, even with a censorship doctrine to back it up.

The only sane answer was, and is, to provide good exits, good design, a good evacuation plan. And NEVER let people get away trying to excuse censorship without a retort. Censorship and lies are inseparable twins, never found parted one from the other.

Thad (profile) says:

Re: Re:

You should read more than two sentences into an article before you comment on it.

I know what you’re thinking — "Read more than two sentences? Who has time for that?" But, my friend, I have some amazing news for you: taking time to read past the second sentence actually saves you time. For example, if you’d read the third and fourth sentence of this article, why, you wouldn’t have had to spend any of the time it took you to compose your reply!

Al Malgamated, In Dustry, Ohio says:

No. Context is always: FALSE report intended taken for real.

Skip all your legalistic sophistries and show it in reality, kid: set up live video upload from another person, then YOU go into a crowded theater without advance notice and so on, in every way making a FALSE report as if real. — We’ll be able to enjoy you being hauled off to JAIL, likely for your own protection after the crowd beats you up, and even if loosed from criminal charge, the theater owner will have civil cause for lost revenue.

Okay? Then, go to it! You’ve got a RIGHT, exercise it!

Sheesh. This LONG-RUNNING series based on CHILDISH assertions only shows that are perverse little fiends trying for "look at me!", and truly believe they’re a form of royalty above common law.

hij (profile) says:

Re: No. Context is always: FALSE report intended taken for real.

If only the article above had a link to a nuanced and logical explanation of the problems associated with using that quote in contexts that it does not belong. Some historical context as to why it is overused and not helpful would be good to.

You know who should do something like that? That Popehat guy. He is good at that sort of thing. We should ask him nicely….

Ninja (profile) says:

Re: No. Context is always: FALSE report intended taken for real.

The Government cannot preempt any speech, including yelling “fire!” in a crowded theater but you will face the consequences if you do it.

That’s the point you fail miserably to understand when talking about free speech. It’s about not letting the government control what speech is allowed and to reach such goal you must not prevent any kind of speech be it hateful or that endangers others.

Bergman (profile) says:

Re: No. Context is always: FALSE report intended taken for real.

The problem is that the origin of the quote about shouting fire wasn’t a false report.

The guy it was said about was an anti-war protestor distributing pamphlets asking people to vote to change the laws that permitted mandatory military service. That’s it.

If it were in fact illegal to do that sort of thing, then it would be impossible to run for any elected office that had an incumbent, because it would be sedition against the existing official.

Anonymous Coward says:

Re: Re:

Why don’t you offer black face masks that say “No USA At All!”. I think they would have a better chance being popular among your small circle of supporters. Maybe give them away for free just to promote your fundamental message, that might attract all 20 like minded people that exist in the US.

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