With all the discussion of censorship, free speech, and the First Amendment, it’s worthwhile to review the 2012 article, “Three Generations of a Hackneyed Apologia for Censorship Are Enough,” posted on the Popehat blog. In it, Ken White points out the following about the “fire in a crowded theater” quote:
1. The phrase comes from additional commentary from Justice Oliver Wendell Holmes on a Supreme Court ruling, rather than the meat of the ruling itself.
2. That case comes from a terrible 1919 ruling, in which the Supreme Court upheld the conviction of the Chairman of the Socialist Party of America for violating the later-beloved-by-Obama Espionage Act by distributing pamphlets critical of military conscription for World War I — activity that today would undoubtedly be considered protected speech.
3. This ruling — one among a trilogy of 1919 rulings against free speech — was thoroughly overturned in the 1969 case Brandenburg v. Ohio, which set the standard still in practice today.
About the 1919 rulings, White writes: “After Holmes’ opinions in the Schenck trilogy, the law of the United States was this: you could be convicted and sentenced to prison under the Espionage Act if you criticized the war, or conscription, in a way that ‘obstructed’ conscription, which might mean as little as convincing people to write and march and petition against it. This is the context of the ‘fire in a theater’ quote that people so love to brandish to justify censorship.”
So the next time you hear someone talking about “shouting fire in a crowded theater,” feel free to remind them that they’re referring to something that was never a law or part of a ruling, that was related to one of the worst rulings by the Supreme Court, and that the ruling was itself overturned over half a century ago.
