This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.
Justice Holmes' famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority. Socialist Party of America chair Charles Schenck was prosecuted and imprisoned under the Espionage Act.
After Holmes' opinion in the Schenck case, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that "obstructed" conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the "fire in a theater" quote that people so love to brandish to justify censorship.
Oh, and notice that the court’s objection was only to "falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.
Yeah but, like, what is your point? It's obviously not that the phrase should be retired because I didn't use that phrase.
Furthermore, origin of the phrase seems kind of irrelevant if nobody knows it. As it stands the phrase is used to illustrate that there are obvious and good limits to free speech, which there are.
Sorry for seeming dense, but sounding off about "censorship apologists" does kind of make you sound like the very person this post is about?
Just so you know, the "fire in a crowded theater" argument was used to sentence an anti-war socialist to a long prison term.
And the judge who made it later regretted doing it, bigtime.
I'm not sure exactly what your point is - do you think it should be legal to yell fire in a crowded theatre?
This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.
Justice Holmes' famous quote comes in the context of a series of early 1919 Supreme Court decisions in which he endorsed government censorship of wartime dissent — dissent that is now clearly protected by subsequent First Amendment authority. Socialist Party of America chair Charles Schenck was prosecuted and imprisoned under the Espionage Act.
After Holmes' opinion in the Schenck case, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that "obstructed" conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the "fire in a theater" quote that people so love to brandish to justify censorship.
Oh, and notice that the court’s objection was only to "falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.
Yeah but, like, what is your point? It's obviously not that the phrase should be retired because I didn't use that phrase.
Furthermore, origin of the phrase seems kind of irrelevant if nobody knows it. As it stands the phrase is used to illustrate that there are obvious and good limits to free speech, which there are.
Sorry for seeming dense, but sounding off about "censorship apologists" does kind of make you sound like the very person this post is about?