Because it was in the Schenck decision that Justice Holmes added the mention in passing that he could not shout fire in a crowded theatre. It was a line that was itself only dicta – in other words, it was never really a legal statement, but a separate meditation used to illustrate the legal issue that the decision was trying to articulate. It was not the subject of the case, nor was it a statement that was otherwise so given the solid consideration it should have deserved if it were really to serve as a legal reference. What if the theatre was really on fire? Would it be illegal to say that? Ironically, people who misunderstand the law by quoting this line also tend to misquote it, as what is often omitted in the trope is that Holmes suggested that the problem would only stem from “false” screams of fire. But even if this criterion were part of the rule, couldn`t such a rule prevent people from sounding the alarm, even if the theater actually burned down? Justice Holmes slipped that line into the decision as the truth, but it was a line he had just mentioned. Nowhere did he explain the implications of such a rule, or what it would mean if history mistakenly believed it to be one. “The `crowded theater` statement in Schenck was never a binding norm or doctrine,” Nashwa Gewaily, a media and First Amendment attorney, told Mental Floss. “It was basically a little more emotional on Judge Holmes` part, outside of the formal legal decision in this case; A powerful image that existed out of context. It was not a high point of American jurisprudence. In fact, this is a case that goes back a long time, when I believe it was in 1917, Schenck v. United States.
I will put the quote here so you can search for it. And it was a quote from Supreme Court Justice Oliver Wendell Holmes. And what`s interesting is that the Schenck case was not about fires, theater, freedom of expression. It was sort of, but it was actually a guy who was accused of violating the Espionage Act because he was a member of the Socialist Party and spoke out against conscription. And the other bizarre thing about why this quote is attributed to why it`s okay to restrict free speech is that the Schenck case, which has now been overturned for about 60 years, actually represented exactly the opposite. The Schenck case applied a fairly high degree of censorship to freedom of expression. That`s why it was overturned, because it was in fact completely contrary to what the First Amendment represented. Its origins date back a little over a century, when the Supreme Court heard several cases in which defendants had said things against government policy. In particular, President Wilson wanted the United States to enter World War I, and he wanted to introduce conscription to have the necessary army. He won and those decisions are now part of our history, but at the time they were incredibly controversial policies, and people voted against them. The government found this resistance extremely uncomfortable in garnering the public support it needed.
So she tried to silence the loudest voices against her by prosecuting her for her messages. In a crowded theater, you can`t shout fire. I`m sure you`ve heard someone say this before when you discussed free speech and restrictions on free speech and the First Amendment. Well, that`s actually one of the most misunderstood quotes from American law. It`s regularly repeated as the status of why there may or are restrictions on free speech, but it`s a big fat myth. I`ll explain it here, so stay tuned. The courts have rigorously considered government measures that could reasonably be expected to conflict with the change. But in common parlance, shouting “fire” in a crowded theater has become a universal justification for regulating speech while escaping judicial review. In my view, more commentators than ever are turning to this misplaced metaphor, perhaps because the proliferation of news media and the growth of social media are exposing the public to more language than ever before, and at least some of that discourse will inevitably be offensive. So, does the false cry of “Fire!” in a crowded theater escape the conditions of imminent illegal acts and therefore fall within the protection of the First Amendment? The short answer is that it depends on the circumstances.
But here`s the long answer: if you`re arrested for it, the charges against you could make the issue of free speech completely irrelevant. The axiom became popular in legal fields after Supreme Court Justice Oliver Wendell Holmes Jr. mentioned it in 1919 during Schenck v. the United States, but he was not the first person to use it in court. As Carlton F.W. Lawson pointed out in a 2015 article in the William & Mary Bill of Rights Journal, U.S. Attorney Edwin Wertz had published a lengthy version the previous year when he sued activist Eugene Debs. Since Holmes decided on Debs` appeal the week after the Schenck case, he may even have had Wertz`s idea.
I argued that section 230 led to the creation of the Internet as we know it today. To justify a radical change to this law, supporters have used a familiar analogy. “The way I describe this to people is that when you scream fire in a crowded theater, it`s not protected speech,” Sen. Amy Klobuchar of Minnesota told the Wall Street Journal in October. “If there is a stampede, the theatre will probably not be prosecuted. If the theater decides to use loudspeakers and broadcast everything the person says or any erroneous information they publish, they will be prosecuted. Right now, these social media companies don`t put this content on themselves, but they send that content. “People falsely shouted `Fire!` or were misunderstood in crowded and panicked public places repeatedly, for example: I have no illusions that the most authoritative science or the most elegant PR efforts would completely thwart the flood of misinformation on the Internet.
But strict rules on speech are unlikely to eliminate and exacerbate suspicions of authority, rejection of science-based conclusions, and other underlying dynamics that lead some people to accept summary claims. The Americans must face these problems and at the same time accept that we will not be able to solve them all. Accusing others of shouting “fire” in a crowded theater is easy, but protecting a healthy marketplace of ideas will leave Americans much better. In a six-paragraph notice dated March 3, 1919, Justice Holmes wrote to a unanimous court that Schenck`s conviction was justified because the leaflets advocated obstruction of military recruitment and thus posed a “clear and present danger” in wartime. “We accept that in many places and in ordinary times, if the defendants had said everything in the circular, they would have been within their constitutional rights,” Holmes wrote.