Shouting fire in a crowded theater

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"Shouting fire in a crowded theater" is a popular analogy for speech or actions made for the principal purpose of creating panic. The phrase is a paraphrasing of Justice Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).^[1]

The paraphrasing differs from Holmes's original wording in that it typically does not include the word falsely, while also adding the word "crowded" to describe the theatre.^[2] The original wording used in Holmes's opinion ("falsely shouting fire in a theatre and causing a panic") highlights that speech that is dangerous and false is not protected, as opposed to speech that is dangerous but also true.

The Schenck case[]

Decision[]

Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917 (amended by the Sedition Act of 1918) to distribute flyers opposing the draft during World War I. Holmes argued that this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:

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.

Legacy[]

The First Amendment holding in Schenck was later partially overturned by Brandenburg v. Ohio in 1969, in which the Supreme Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action [e.g., a riot] and is likely to incite or produce such action."^[1] The test in Brandenburg is the current Supreme Court jurisprudence on the ability of government to punish speech after it occurs. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has become synonymous with speech that, because of its danger of provoking violence, is not protected by the First Amendment.

Criticism[]

Christopher M. Finan, Executive Director of the National Coalition Against Censorship, writes that Justice Holmes began to doubt his decision due to criticism received from free-speech activists. He also met the legal scholar Zechariah Chafee and discussed his Harvard Law Review article "Freedom of Speech in War Times".^[3][4] According to Finan, Holmes's change of heart influenced his decision to join the minority and dissent in the Abrams v. United States case. Abrams was deported for issuing flyers saying the US should not intervene in the Russian Revolution. Holmes and Brandeis said that "a silly leaflet by an unknown man" should not be considered illegal.^[3][5] Chafee argued in Free Speech in the United States that a better analogy in Schenck might be a man who stands in a theatre and warns the audience that there are not enough fire exits.^[6][7]

In his introductory remarks to a 2006 debate in defense of free speech, writer Christopher Hitchens parodied the Holmes judgment by opening "FIRE! Fire, fire... fire. Now you've heard it", before condemning the famous analogy as "the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes." Hitchens argued that the "Yiddish speaking socialists" protesting America's entry into World War I, who were imprisoned by the Court's decision, "were the real fire fighters, were the ones shouting fire when there really was a fire, in a very crowded theatre indeed. And who is to decide?"^[8][9]

Historical instances[]

People have falsely shouted "Fire!" or been misheard in crowded public venues and caused panics on several occasions, such as:

• At the Royal Surrey Gardens Music Hall, Newington, London on October 19, 1856. Someone shouted "Fire!" at the first religious service of the famous Baptist preacher Charles Spurgeon and a panic to escape ensued. Seven were killed in the crush and many injured.
• At Mount Morris Theater, Harlem, New York City in September 1884. During the fire scene of 'Storm Beaten', someone in the gallery shouted "Fire!" three times. The performance continued and a Roundsman and a Policeman arrested a young man.^[10]
• In the Shiloh Baptist Church stampede, Birmingham, Alabama on September 19, 1902. Over 100 people died when someone in the choir yelled, "There's a fight!". "Fight" was misheard as "fire" in a crowded church of approximately 3000 people, causing a panic and stampede. ^[11]
• In the Italian Hall disaster, Calumet, Michigan on December 24, 1913. Seventy-three men, women, and children, mostly striking mine workers and their families, were crushed to death in a stampede when someone falsely shouted "Fire!" at a crowded Christmas party.^[12]
• At Raymond Cinema 3, Mandaluyong, Metro Manila on December 26, 1987. One 13-year-old girl died from internal haemorrhage while many moviegoers, mostly women, were injured due to a stampede that began when a man shouted "Sunog!" (lit. 'Fire!') three times at the packed theater during an evening screening of the Metro Manila Film Festival entry Huwag Mong Buhayin ang Bangkay.^[13]

In contrast, during the Brooklyn Theatre fire, theatre staff were reluctant to cause a panic by shouting fire and instead pretended that the fire was part of the performance. This delayed the evacuation, leading to a death toll of at least 278.

See also[]

References[]

Further reading[]

• Cohen, Carl (1989). "Free speech and political extremism: How nasty are we free to be?" (PDF). Law and Philosophy. 7:3 (1989) (3): 263–279. doi:10.1007/BF00152513. hdl:2027.42/43167. S2CID 145009949.

• Timm, Trevor (2012-11-02). "It's Time to Stop Using the 'Fire in a Crowded Theater' Quote". The Atlantic. Retrieved 2020-04-22.

• Larson, Carlton F.W., "Shouting 'Fire' in a Theater": The Life and Times of Constitutional Law's Most Enduring Analogy, William & Mary Bill of Rights Journal (October 2015), vol. 24, pp. 181-212.^[1]