‘Falsely shouting fire in a theatre’
“Falsely shouting fire in a theatre” may be the most recognizable phrase in all of First Amendment law. Written by Justice Oliver Wendell Holmes in 1919, it stands for the principle that the First Amendment does not protect all forms of speech. It’s a phrase that has entered the cultural lexicon — used in movies, book titles and even sports press conferences.
Holmes, along with his colleague Justice Louis Brandeis, is sometimes called a father of the First Amendment. He authored many of the seminal decisions that explained why our country should protect freedom of speech. For example, he proposed the use of the so-called “clear and present danger” test to help draw the line between protected and unprotected speech that he first mentioned in Schenck v. United States (1919). Ronald K.L. Collins, in his excellent book, The Fundamental Holmes, writes that this test created “a First Amendment formula that stood to recalibrate First Amendment thinking in significant ways.”
Schenck also produced Holmes’ memorable “shouting fire” phrase. The case involved the federal prosecution of Charles T. Schenck and Elizabeth Baer for distributing leaflets urging people to refuse to comply with the draft. Schenck, the general secretary of the Socialist Party, opposed U.S. involvement in World War I and said conscription was akin to slavery.
In the leaflets Schenck cited the 13th Amendment of the Constitution, which outlawed slavery. Conscription into the armed forces, he said, amounted to a form of indentured servitude. The leaflets urged no violence and included the phrase, “Assert Your Rights.”
Nevertheless, Justice Holmes affirmed the convictions for a unanimous Supreme Court. He wrote:
“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. … 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. It is question of proximity and degree.” (emphasis added)
Holmes said that in times of war the government can place greater restrictions on freedom of speech.
Holmes’ classic “fire in a theatre” metaphor is perhaps the most quoted phrase from First Amendment jurisprudence. Unfortunately, it is usually used by someone advocating the restriction of First Amendment expression.
Even former world heavyweight champion Mike Tyson used the phrase during an interview, responding to criticism in the news media for outrageous comments about an opponent. Tyson said his comments did not rise to the level of a false fire warning.
Interestingly, Holmes’ passage is often misquoted as “fire in a crowded theatre.” Holmes never used the adjective “crowded.” He also qualified his statement by using the word “falsely.”