It's an over used concept in arguments related to free speech...you can't yell "fire!" in a crowded theatre. Did it spring from an actual event, a theatre tragedy where someone falsely yelled "fire!" and innocent victims were trampled to death trying to escape? No, it came from a series of sedition trials during the First World War...
Eugene V. Debs hated the War...
Eugene Debs was a socialist...bordering on being a communist, a rabble-rouser, a progressive, a founder of the International Workers of the World, a champion for the rights of workers, a candidate for President of the United States in 1912, and a man strongly opposed to America getting involved in a far-off European war. On April 6th, 1917 America declared war on Germany, ostensibly for the German Kaiser's policy of unrestricted submarine warfare and a little telegram sent by Arthur Zimmerman, Germany's Foreign Minister, to the Kaiser's man in Mexico, Heinrich von Eckhardt. It encouraged an already revolution wracked Mexico to declare war on the United States. Mexico would be promised a return of the lost provinces, Arizona, New Mexico and Texas should Germany, allied with Mexico, be victorious. The telegram was decoded by the British in 1917, and handed off to the U.S. in an attempt to inflame and heighten anti-German sentiments both in the government and the American population. The tactic proved successful and pushed the United States government over the edge, into war against the Central Powers. Eugene V. Debs would have none of it. On June 15th, 1918, Debs gave a moving anti-war speech in Canton, Ohio. It was the typical "red meat" for socialist crowds. It was full of "rich versus poor" and "government versus citizen" rhetoric, typical of the socialist movement in the United States of the time. Freedom of Speech, as guaranteed in the Bill of Rights, ensured Debs' right to speak in what ever manner, or on what ever topic he chose....or so he thought...
Exactly one year earlier, Congress had enacted the Espionage Act, and on May 16th, 1918, The Sedition Act followed. Both allowed the government to arrest and prosecute any individual whom, they believed, was working in the interest of a foreign power against the United States in a time of war. These were some of the most unconstitutional pieces of legislation ever passed by Congress and hearkened back to the Alien and Sedition Acts of 1798. Freedom of Speech, guaranteed under the First Amendment of the Constitution was once again to be assailed. Eugene Debs was arrested on June 30th, charged with 10 counts of sedition by the Federal government. His trial was held in Cleveland, Ohio between September 9th and 12th, 1918. Before sentencing, an impassioned speech was made by Debs to the Judge and "Jury of his peers", but it made no difference...he received 10 years in prison, for simply expressing opinion, publicly. Debs' trial is where this "yelling fire!" legal analysis first appears. It's been used as a legal weapon against the rights of Americans ever since. In his closing rebuttal, the Federal prosecutor Edwin Wirtz, made this argument:
"Now, he speaks about the Constitution of the United States giving him the authority to do what he did at Canton. The Constitution provides that there shall be no abridgement of free speech, it is true; yet it is a fact that a man in a crowded auditorium, or any theatre, who yells "fire" and there is no fire, and a panic ensues and someone is trampled to death, may be rightfully indicted and charged with murder, and may be convicted and sent to the electric chair for making such an outcry when there is no occasion for it. That is an abridgement of the right of free speech according to the defendant's idea. According to his theory, a man could go into a crowded theatre, or even into this audience, and yell "fire" when there was no fire, and people trampled to death, and he would not be punished for it because the Constitution says he has the right of free speech."
Enter Mr. Schenck...
Charles Schenck was an antiwar advocate opposed to American men being drafted into the army and sent overseas and fight in WWI...he was also the Secretary General of the United States Socialist Party. Schenck, along with Dr. Elizabeth Baer, approved, printed, and distributed a flyer that urged young men to oppose the Draft. They were arrested in Philadelphia, charged with sedition, convicted, and given lengthy prison sentences.
Charles Schenck and Dr. Elizabeth Baer's criminal convictions were one of the first in a long line of thousands being prosecuted by the Federal Government and the Wilson Administration to silence dissent, against what many saw as foreign entanglement, anathema to the ideals set forth in Washington's presidential farewell address. By 1919, the Schenck case had reached the Supreme Court, but wasn't the first case to be heard surrounding the egregious miscarriages of the Espionage and Sedition Acts of 1917-1918 and the deprivation of First Amendment rights by these capricious new laws and the justices were well aware of the legal controversy. Balzer v. United States got there first, and involved a group of South Dakota farmers who had informed the state governor that his support for the War and the Draft would cost him reelection. Their opinions were seen as seditious by an out of control and weaponized Federal government. The farmers who had dared express themselves were prosecuted, convicted, and imprisoned by the United States. Let freedom ring.
Oliver Wendell Holmes
Perhaps one of the most influential Supreme Court justices to ever serve, Oliver Wendell Holmes' influence on defining and affecting the modern interpretations of free speech closely mirror the Supreme Court's stance on slavery in the Dred Scott case of 1857. Nominated to the Court in 1902 by President Theodore Roosevelt he served until January of 1932 and was a prolific and skilled writer, displaying a pithiness in his opinions some have characterized as entertaining, poignant, and persuasive. Incidentally, he also fought for the Union as a Colonel in the American Civil War, being wounded on three separate occasions. This man's opinion in Schenck v. United States rocketed the "yelling fire in a crowded theatre" legal theorem to a position in which it would be used in one form or another as the "gold standard" for First Amendment cases...for 50 years.
"The most stringent protection of free speech would not protect a man 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."
With "clear and present danger", Justice Holmes decided that Charles Schenck's distribution of anti-Draft flyers jeopardized the United States' ability to conscript men for the War, hence, Schenck and Baer's actions could be seen as criminal under the Espionage and Sedition Acts, in that their dissenting speech during this wartime crisis was dangerous and harmful. In Debs, Holmes' opinion went even further. Eugene Debs did not specifically make statements encouraging Draft dodging, but it was reasoned that the speech's underlying meaning and intent would cause those who listened to somehow undermine the American War Effort and encourage others to act in a manner that could be seen as detrimental toward America's involvement.
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By who's standard should we judge the intent behind speech? How do we divine what a man is thinking whilst he is speaking? How can you possibly codify Law in regards to what, when, and where a person may speak freely of his or her opinion? Was the standard now set to "chill" free speech because what was said might influence other's actions?
Holmes seemed to see the quandary in his opinions set forth in Schenck and Debs and he reversed himself in November of 1919 with a dissenting opinion in the case of Abrams et al. versus United States. A mere 8 months later, after seeing the error of his way, Holmes was Enlighted, and dissented. The Court was divided, only two Justices in favor of overturning the conviction. Jacob Abrams and the others involved remained imprisoned. For simply handing of handing out leaflets protesting America's military involvement in the Russian revolution. Holmes and his fellow Justice, Louis Brandeis were not convinced that these and other Federal persecutions under the Espionage and Sedition Acts, were constitutional.
By 1920, the Sedition Act was repealed, along with some parts of the Espionage Act and some of those imprisoned under its tyrannical umbrella were released from prison. The War that had brought about their inception was over on November 11th, 1918, the United States and their allies victorious over Kaiser Wilhelm's Germany. Yet, the concept of a fire, in a theatre, with someone yelling, lived on. Along with the legal concept of "clear and present danger", the reasoning continued to influence subsequent cases...long after Oliver Wendell Holmes passed away in 1935 at the age of 93. Yet, his opinion, on two cases that had nothing to do with a stampeding audience but everything to do freedom of expression lived on, foolishly brought up as a legitimate legal argument to this day...
In 1969, Brandenburg v. Ohio was reversed by the Supreme Court. Strangely enough, it was a case of speech that any reasonable person would abhor. Members of the Ku Klux Klan were convicted of advocating violence through speeches given at a KKK rally in Hamilton County, Ohio. When it reached the Supreme Court, the decision wiped out much of Holmes' previous legal reasoning, and established that speech, even speech that appears to incite violence, cannot be criminalized. You are free to speak, write, print and publish as you please, the government may not forbid it, or prosecute it...so long as what you say does not incite immediate violence, or the likelihood of producing immediate unlawful actions.
As the law goes, you can scream fire in a crowded theater...you can even sit back and watch the moviegoers trample one another in their panic to get out of the building. Should you though? I imagine that you might be subjected to a little "street justice" if you pulled something like this...but under the law...it's legal, however unsavory such an act may be.
As the law goes, you can scream fire in a crowded theater...you can even sit back and watch the moviegoers trample one another in their panic to get out of the building. Should you though? I imagine that you might be subjected to a little "street justice" if you pulled something like this...but under the law...it's legal, however unsavory such an act may be.