“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…When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.” Oliver Wendell Holmes, Schenck vs. United States
In our present day, the idea of free speech is suddenly in the news again. But then again, it’s never far out of the news. I remember politicians and religious leaders battling with musicians over lyrics in their songs as a kid — Al and Tipper Gore in particular.
Before that it was Lenny Bruce, a comedian regularly arrested on obscenity charges for words used during his comedy performances in the 1960s. Far before that it was the Sedition Act in 1798, which outlawed any actions “to oppose any measure or measures of the government.” This included speech.
It seems every age has their challenge to free speech. The modern-day iteration of censorship now is called cancel culture by many.
We live in a country where the First Amendment grants us the right to free speech, however, it’s often challenged. The usual reason for silencing a type of speech is the damage it can do. Can what you say either wound, harm, or cause others to do something terrible?
Whenever one of these arguments breaks out, you’ll likely hear the “fire in a crowded theater” line. It’s a quick way to purvey certain speech as dangerous in the United States.
But have you ever wondered where this comes from? Its origin is from a court case more than 100 years ago. The statement was written by Supreme Court Justice Oliver Wendell Holmes and used in a way to say all speech isn’t acceptable or permitted.
But the case wasn’t about a fire. Furthermore, the language being challenged was far from the danger Holmes indicated.
The case involved the Court sentencing a man to 10 years in prison for protesting World War I with a pamphlet explaining it was unconstitutional. This was the unacceptable speech; it was the fire in the crowded theater.
In his article on the free speech forum Popehat, writer Ken White refers to the theater statement as: “the most famous and pervasive lazy cheat in American dialogue about free speech.” Furthermore in his article in the Atlantic, free speech writer Trever Tim refers to the overall case as “one of the most odious free speech decisions in the Court’s history”.
Tim also reminds us, this statement itself was never part of established law. It’s what’s called a “dictum”. It has no legally enforced authority. The words are just an explanation of a judge’s decision on a case, not the decision itself.
In fact, the more you learn about this simple line, the less appealing it is.
What Was Happening 100 Years Ago?
“If there should be disloyalty, it will be dealt with a firm hand of repression.”
— Woodrow Wilson, Quote used by Damon Root, Reason Magazine
Damon Root reminds us as the United States entered WWI, President Woodrow Wilson had a problem. Many in the country opposed entering a foreign war. In addition, many German citizens lived in the country, posing a possible threat. Both issues hampered the war effort and had to be dealt with.
In June 1917 Wilson eagerly signed the Espionage Act into law. This made it illegal to “convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies.”
In other words, most forms of anti-war speech were criminalized. If convicted of obstructing the war effort, the guilty party faced up to $10,000 in fines and possibly 20 years in prison.
Wilson also created the Committee On Public Information (CPI). This organization created war propaganda and encouraged American citizens to spy on each other.
According to Michael O’Malley, Associate Professor of History at George Mason University, a campaign against anything German began in America too. Street names were changed and those with German names were “encouraged” to change them. Even teaching the language was banned and any references to the song “Oh Tannenbaum” were torn from children’s books.
The Legal Cases That Inspired The Fire Argument
Empowered by the Espionage Act, the government began to prosecute those who spoke out against the war. In Schenck vs. United States — the first of these cases argued in front of the Supreme Court in 1919 — a man was sentenced to a long prison term for handing out flyers.
According to Trever Tim, the flyers didn’t encourage violence, just challenged the Constitutional right of the United States to impose a draft. However, certain speech wasn’t considered free — dictated by members of the Supreme Court. This is where Holmes issued the dictum on fire in a crowded theater.
In a second ruling, Debs vs. United States, socialist Eugene V. Debs had his sentence for 10 years in prison upheld. He was convicted of giving an anti-war speech. In this case, his speech was the fire in the crowded theater.
In a third ruling, Frohwerk v. United States, Ken White explains the Court upheld the 10-year sentence of a man running a newspaper who published anti-war views. In this case, the newspaper was the fire in the crowded theater. However, in the next three cases Holmes appears to have changed his mind.
White lists dissenting opinions from Holmes mentioning certain speech we find abhorrent isn’t criminal, and defending the accused’s freedom to speak out against the war. So, after some thought, it wasn’t exactly a fire in a crowded theater.
By 1920, the group of laws enforcing the Espionage Act were gone and repealed. Tim says by 1969 in Brandenburg v. Ohio any remnants of the Schenck decision were completely overturned.
A Modern Speaker Shouts Fire In A Crowded Theater
“Bear in mind, ladies and gentleman, that every time you violate, or propose to violate, the right to free speech of someone else, you in potentia [are] making a rod for your own back. Because the other question raised by Justice Oliver Wendell Holmes is simply this: who’s going to decide, to whom do you award the right to decide which speech is harmful, or who is the harmful speaker?”
— Christopher Hitchens, University of Toronto, November 15th, 2006
In his speech in front of a crowded hall in Toronto, Christopher Hitchens started by shouting “fire”. Obviously, there was no blaze. Hitchens also joked the hall looked more like Hogwarts than a traditional theater, but he had a point in mind.
He warned his audience to beware who they give the power of censorship to. He asked his listeners to think of anyone they know who’d they trust to monitor their own speech. Who is that good, just, or right-minded?
He went on in his speech to give inflammatory rhetoric blaming religion for just about every problem in society. I personally found it insulting. However, there was no fire in that lecture hall. It was just a speaker giving his opinion, and in Canada that can be a precarious thing at this time.
In particular, it can be dangerous to tell a joke. In 2011, comedian Guy Earle was ordered to pay $15,000 for insulting a woman at a comedy performance. A similar verdict was given to Mike Ward for telling a joke in 2016, but his fine was $42,000. The Canadian Human Rights Tribunal saw the comments as damaging.
Hitchens’ words ring true today. In Canada we can see the examples above of censorship run amok. We can also see it being imposed on social media as well. We should be careful who we elect as our censors and the power we give them.
You might think the definition of “fire” is the same in everyone’s lexicon. But as Oliver Wendell Holmes shows, it’s not. Fire may be anti-war speech to some. To others it may be a joke. Some may even see unpopular opinion as the fire in the crowded theater.
Even the author of the phrase changed his mind about it within a year.
The next time you hear or feel tempted to use the fire in a theater argument, you should keep this in mind. The fire in that very theater may be the next words out of your mouth.