when the Reverend Jerry Falwell learned that the Supreme Court had reversed his $200,000 judgment against Hustler magazine for the emotional distress that he had suffered from an outrageous parody, his response was typical of those who seek to censor speech: "Just as no person may scream 'Fire!' in a crowded theater when there is no fire, and find cover under the First Amendment, likewise, no sleazy merchant like Larry Flynt should be able to use the First Amendment as an excuse for maliciously and dishonestly attacking public figures, as he has so often done."
Justice Oliver Wendell Holmes's classic example of unprotected speech—falsely shouting "Fire!" in a crowded theater—has been invoked so often, by so many people, in such diverse contexts, that it has become part of our national folk language. It has even appeared—most appropriately—in the theater: in Tom Stoppard's play Rosencrantz and Guildenstern Are Dead a character shouts at the audience, "Fire!" He then quickly explains: "It's all right—I'm demonstrating the misuse of free speech." Shouting "Fire!" in the theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian recently characterized it as "the most brilliantly persuasive expression that ever came from Holmes' pen." But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered. It has lately become—despite, perhaps even because of, the frequency and promiscuousness of its invocation—little more than a caricature of logical argumentation.
The case that gave rise to the "Fire!"-in-a-crowded-theater analogy—Schenck v. United States—involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia, and Elizabeth Baer, who was its recording secretary. In 1917 a jury found Schenck and Baer guilty of attempting to cause insubordination among soldiers who had been drafted to fight in the First World War. They and other party members had circulated leaflets urging draftees not to "submit to intimidation" by fighting in a war being conducted on behalf of "Wall Street's chosen few. " Schenck admitted, and the Court found, that the intent of the pamphlets' "impassioned language" was to "influence" draftees to resist the draft. Interestingly, however, Justice Holmes noted that nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription: "In form at least [the pamphlet] confined itself to peaceful measures, such as a petition for the repeal of the act" and an exhortation to exercise "your right to assert your opposition to the draft." Many of its most impassioned words were quoted directly from the Constitution.
Justice Holmes acknowledged 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," he added, "the character of every act depends upon the circumstances in which it is done." And to illustrate that truism he went on to say,
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Justice Holmes then upheld the convictions in the context of a wartime draft, holding that the pamphlet created "a clear and present danger" of hindering the war effort while our soldiers were fighting for their lives and our liberty.
The example of shouting "Fire!" obviously bore little relationship to the facts of the Schenck case. The Schenck pamphlet contained a substantive political message. It urged its draftee readers to think about the message and then—if they so chose—to act on it in a lawful and nonviolent way. The man who shouts "Fire!" in a crowded theater is neither sending a political message nor inviting his listener to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The message "Fire!" is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection. It is—as Justice Holmes recognized in his follow-up sentence—the functional equivalent of "uttering words that may have all the effect of force."
Indeed, in that respect the shout of "Fire!" is not even speech, in any meaningful sense of that term. It is a clang sound—the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire. But that obviously would have been irrelevant to the case at hand. The proposition that pulling an alarm is not protected speech certainly leads to the conclusion that shouting the word fire is also not protected. But the core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible to analogize one set of words to another—as he could not have done if he had begun with the self-evident proposition that setting off an alarm bell is not free speech.
when the Reverend Jerry Falwell learned that the Supreme Court had reversed his $200,000 judgment against Hustler magazine for the emotional distress that he had suffered from an outrageous parody, his response was typical of those who seek to censor speech: "Just as no person may scream 'Fire!' in a crowded theater when there is no fire, and find cover under the First Amendment, likewise, no sleazy merchant like Larry Flynt should be able to use the First Amendment as an excuse for maliciously and dishonestly attacking public figures, as he has so often done."
Justice Oliver Wendell Holmes's classic example of unprotected speech—falsely shouting "Fire!" in a crowded theater—has been invoked so often, by so many people, in such diverse contexts, that it has become part of our national folk language. It has even appeared—most appropriately—in the theater: in Tom Stoppard's play Rosencrantz and Guildenstern Are Dead a character shouts at the audience, "Fire!" He then quickly explains: "It's all right—I'm demonstrating the misuse of free speech." Shouting "Fire!" in the theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian recently characterized it as "the most brilliantly persuasive expression that ever came from Holmes' pen." But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered. It has lately become—despite, perhaps even because of, the frequency and promiscuousness of its invocation—little more than a caricature of logical argumentation.
The case that gave rise to the "Fire!"-in-a-crowded-theater analogy—Schenck v. United States—involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia, and Elizabeth Baer, who was its recording secretary. In 1917 a jury found Schenck and Baer guilty of attempting to cause insubordination among soldiers who had been drafted to fight in the First World War. They and other party members had circulated leaflets urging draftees not to "submit to intimidation" by fighting in a war being conducted on behalf of "Wall Street's chosen few. " Schenck admitted, and the Court found, that the intent of the pamphlets' "impassioned language" was to "influence" draftees to resist the draft. Interestingly, however, Justice Holmes noted that nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription: "In form at least [the pamphlet] confined itself to peaceful measures, such as a petition for the repeal of the act" and an exhortation to exercise "your right to assert your opposition to the draft." Many of its most impassioned words were quoted directly from the Constitution.
Justice Holmes acknowledged 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," he added, "the character of every act depends upon the circumstances in which it is done." And to illustrate that truism he went on to say,
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.
Justice Holmes then upheld the convictions in the context of a wartime draft, holding that the pamphlet created "a clear and present danger" of hindering the war effort while our soldiers were fighting for their lives and our liberty.
The example of shouting "Fire!" obviously bore little relationship to the facts of the Schenck case. The Schenck pamphlet contained a substantive political message. It urged its draftee readers to think about the message and then—if they so chose—to act on it in a lawful and nonviolent way. The man who shouts "Fire!" in a crowded theater is neither sending a political message nor inviting his listener to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The message "Fire!" is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection. It is—as Justice Holmes recognized in his follow-up sentence—the functional equivalent of "uttering words that may have all the effect of force."
Indeed, in that respect the shout of "Fire!" is not even speech, in any meaningful sense of that term. It is a clang sound—the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire. But that obviously would have been irrelevant to the case at hand. The proposition that pulling an alarm is not protected speech certainly leads to the conclusion that shouting the word fire is also not protected. But the core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible to analogize one set of words to another—as he could not have done if he had begun with the self-evident proposition that setting off an alarm bell is not free speech.
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