Fire!
February 18, 2013 9:46 AM   Subscribe

In Schenck v. United States, Chief Justice Oliver Wendell Holmes famously used the phrase "shouting fire in a crowded theater" as an example of how the First Amendment does not cover speech that poses a clear and present danger. But how did Holmes come to use that particular phrase? The backstory is surprisingly complex.
posted by Chrysostom (15 comments total) 34 users marked this as a favorite

 
What a great article. The more you know about early labor history in the US, the more you understand why they don't teach it in schools. It is too incendiary.
posted by emjaybee at 10:51 AM on February 18, 2013 [6 favorites]


Damn straight. The labor movement in the US was contentious and violent struggle between people trying and dying to express their rights and people trying to make an extra buck off their sweat. And not nearly enough people know about it.
posted by kaibutsu at 11:04 AM on February 18, 2013 [3 favorites]


emjaybee: "It is too incendiary."

I see what you did there.
posted by Chrysostom at 11:09 AM on February 18, 2013 [2 favorites]


Whenever hardline gun rights people decry any impingent of that right as a step down a steep and slippery slope towards tyranny, it is this example that my mind turns to; although I rarely hear it brought up in the media. We have a glib, common-knowledge argument for limiting our first amendment right--shouting fire in a crowded theater--that we largely accept in the name of public safety. We accept also that it doesn't apply only to theaters and shouts of fire--we accept the principle that our freedom of speech can be curtailed in certain circumstances to protect the welfare of others, and that our right to free speech is not fundamentally compromised by this concession.

Why speech, and not guns?
posted by oneironaut at 11:32 AM on February 18, 2013 [7 favorites]


Great article, wish it had made it into the larger book mentioned, as I'd definitely want to read that.
posted by odinsdream at 11:40 AM on February 18, 2013



Why speech, and not guns?


Just to play devil's advocate - I think pretty much everyone understands that the right to "Keep and bear arms" is a limited right, and that public ownership of certain types of arms (Machine guns, howitzers, hellfire missles, etc.) is clearly not intended, or can be suitably regulated.

The argument is over where exactly those limits lie lay are.
posted by Pogo_Fuzzybutt at 11:59 AM on February 18, 2013 [3 favorites]


That was extremely interesting.

When I teach ethics and/or political philosophy, one of my students always pops out with that phrase -- "you can't shout fire in a crowded theater" -- and I ask them, "What would happen if someone came in here right now and shouted fire?" and they say, you know, we'd check for flames and smoke and neatly file out the nearest fire door aided by the emergency exit signs and wait for the fire department. It's something you've done 100 times as a drill, you've maybe even been in small building fire or two, it is, most of the time, a mild inconvenience. I tell them, "Now think back 100 years, 150 years, to when there are no building codes, theaters are lit by flames of candle or gas, most everything's built out of wood, there are no fire departments, no fire codes, theaters are overcrowded, stairs are steep, exit doors are inadequate, and when a lantern gets tipped over near the stage the whole wooden stage goes up ... people died fairly routinely in theater stampedes, which were somewhat like those terrible human-crushing deaths at soccer games sometimes." And they're like, "Oooooooooohhhhh ....."

Students think "fire in a crowded theater" is an incredibly low threshhold for restricting speech because with modern fire safety, falsely shouting fire in a crowded theater would be a rotten thing to do, but unlikely to induce loss of life or more than a fairly mild panic. In fact, we have fire drills so often that the reaction to a real fire in most cases is that people groan about an ill-timed drill while calmly evacuating. So not only is "fire in a crowded theater" stripped of all the violent labor union conflict in this article, but my students think it refers to a mild inconvenience of a rude-but-not-dangerous sort. No wonder they're often so eager to restrict speech rights when something offends them or hurts their feelings. It's a terribly dangerous metaphor, a lazy shortcut that barely applies to the modern world at all.

Now I'll make them read this article too.
posted by Eyebrows McGee at 12:06 PM on February 18, 2013 [15 favorites]


> Why speech, and not guns?

Guns have better funding.
posted by Panjandrum at 12:07 PM on February 18, 2013 [1 favorite]


But in one sentence he managed to formulate a test for freedom of speech that would endure on the Court in some form until 1968—“[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”

What happened in 1968?
posted by RobotHero at 12:09 PM on February 18, 2013


What happened in 1968?

I'm not sure, but I think Brandenburg v. Ohio.
posted by audi alteram partem at 12:21 PM on February 18, 2013 [1 favorite]


Yes, Brandenburg replaced "clear and present danger" with "imminent lawless action," essentially broadening the First Amendment's protection of free speech.
posted by Chrysostom at 12:25 PM on February 18, 2013 [1 favorite]


when there are no building codes...there are no fire departments, no fire codes, theaters are overcrowded, stairs are steep, exit doors are inadequate

Isn't this the government regulation-free utopia libertarians have been striving to return us to?
posted by Sangermaine at 2:02 PM on February 18, 2013 [1 favorite]


That's amazing - 75 people killed in the stampede. What a good idea to look into the backstory of the example.
posted by LobsterMitten at 3:56 PM on February 18, 2013


Wow, this story was really interesting. I had no idea that the idea of "Don't say stuff that will get people killed" was used to justify "Don't disagree with the government."
posted by rebent at 4:10 PM on February 18, 2013 [1 favorite]


I'm intrigued by the details of this story, which wasn't as familiar to me as it should be. This is the centennial year, and with mining once again a political issue in northern Wisconsin, I wonder if a commemoration is in order.

Isn't this the government regulation-free utopia libertarians have been striving to return us to?

Look, if you die in a theatre fire, you'll learn not to patronize that establishment in the future.

It's a terribly dangerous metaphor, a lazy shortcut that barely applies to the modern world at all.

Well, there's also the fact that it was superseded by case law when their parents were in school. But while it may be stripped of some of its terror, I'm not sure whose fault that is, when we still have things like The Station, E2, or Kiss taking place. Maybe illustrate it with a slide of some pretty contemporary young people piled dead on one another. Given that this is still a very real issue, I think your students may simply be naive in a more general sense.
posted by dhartung at 5:48 PM on February 18, 2013


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