Oliver Wendell Holmes made the analogy during a controversial Supreme Court case that was overturned more than 40 years ago.
Ninety-three years ago, Justice Oliver Wendell Holmes wrote what is perhaps the most well-known -- yet misquoted and misused -- phrase in Supreme Court history: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Without fail, whenever a free speech controversy hits, someone will cite this phrase as proof of limits on the First Amendment. And whatever that controversy may be, "the law"--as some have curiously called it--can be interpreted to suggest that we should err on the side of censorship. Holmes' quote has become a crutch for every censor in America, yet the quote is wildly misunderstood.
The latest example comes from New York City councilmen Peter Vallone, who declared yesterday "Everyone knows the example of yelling fire in a crowded movie theater," as he called for charges against pseudonymous Twitter @ComfortablySmug for spreading false information during Hurricane Sandy. Other commentators have endorsed Vallone's suggestions, citing the same quote as established precedent.
In the last few years, the quote has reared its head on countless occasions. In September, commentators pointed to it when questioning whether the controversial anti-Muslim video should be censored. Before that, it was invoked when a crazy pastor threatened to burn Qurans. Before that, the analogy was twisted to call for charges against WikiLeaks for publishing classified information. The list goes on.
But those who quote Holmes might want to actually read the case where the phrase originated before using it as their main defense. If they did, they'd realize it was never binding law, and the underlying case, U.S. v. Schenck, is not only one of the most odious free speech decisions in the Court's history, but was overturned over 40 years ago.
First, it's important to note U.S. v. Schenck had nothing to do with fires or theaters or false statements. Instead, the Court was deciding whether Charles Schenck, the Secretary of the Socialist Party of America, could be convicted under the Espionage Act for writing and distributing a pamphlet that expressed his opposition to the draft during World War I. As the ACLU's Gabe Rottman explains, "It did not call for violence. It did not even call for civil disobedience."
The Court's description of the pamphlet proves it to be milder than any of the dozens of protests currently going on around this country every day:
It said, "Do not submit to intimidation," but in form, at least, confined itself to peaceful measures such as a petition for the repeal of the act. The other and later printed side of the sheet was headed "Assert Your Rights."
The crowded theater remark that everyone remembers was an analogy Holmes made before issuing the court's holding. He was explaining that the First Amendment is not absolute. It is what lawyers call dictum, a justice's ancillary opinion that doesn't directly involve the facts of the case and has no binding authority. The actual ruling, that the pamphlet posed a "clear and present danger" to a nation at war, landed Schenk in prison and continued to haunt the court for years to come.
Two similar Supreme Court cases decided later the same year--Debs v. U.S. and Frohwerk v. U.S.--also sent peaceful anti-war activists to jail under the Espionage Act for the mildest of government criticism. (Read Ken White's excellent, in-depth dissection of these cases.) Together, the trio of rulings did more damage to First Amendment as any other case in the 20th century.
In 1969, the Supreme Court's decision in Brandenburg v. Ohio effectively overturned Schenck and any authority the case still carried. There, the Court held that inflammatory speech--and even speech advocating violence by members of the Ku Klux Klan--is protected under the First Amendment, unless the speech "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis mine).
Today, despite the "crowded theater" quote's legal irrelevance, advocates of censorship have not stopped trotting it out as thefinal word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it's "worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech." Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, "the most famous and pervasive lazy cheat in American dialogue about free speech."
Even Justice Holmes may have quickly realized the gravity of his opinions in Schneck and its companion cases. Later in the same term, Holmes suddenly dissented in a similar case, Abrams vs. United States, which sent Russian immigrants to jail under the Espionage Act. It would become the first in a long string of dissents Holmes and fellow Justice Louis Brandeis would write in defense of free speech that collectively laid the groundwork for Court decisions in the 1960s and 1970s that shaped the First Amendment jurisprudence of today.
In what would become his second most famous phrase, Holmes wrote in Abrams that the marketplace of ideas offered the best solution for tamping down offensive speech: "The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
In @ComfortablySmug's case during Hurricane Sandy, that is exactly what happened. Within minutes of sending out his false tweets, journalists discovered he was spreading rumors and quickly corrected the record, sounding the alarm not to trust his information. Regardless, no one was hurt because of his misinformation. The next day, @ComfortablySmug (whose real name is Shashank Tripathi) apologized and resigned from his job as the campaign manager of a House Republican candidate in New York in response to the public's reaction to his actions.
The truth prevailed, not through forcing censorship or jailing a person for speaking, but through the overwhelming counterbalance of more speech. As Holmes said after his soliloquy in Abrams, "That, at any rate, is the theory of our Constitution."
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