"You Can't Shout Fire in a Crowded Theater"

[FinaLee]

…is probably one of the weakest arguments one could possibly make for regulating speech. It is often used by people who are unaware of the phrase's history, so allow me to shed some light on its origins and explain why it's poor for discussion.

And no, it did not have anything to do with an actual event of someone screaming "Fire!" when there wasn't one. The quote originates in a Supreme Court case, Schenck v. United States (1919), where a man named Charles Schenck was arrested for distributing leaflets to conscripted soldiers that contained language opposing the WWI draft. The police cited the Espionage Act as reason for his arrest, arguing that his leaflets would cause insubordination in the military and thus impair the government in defeating the Central Powers.

Hmm, maybe. But isn't Mr. Shenck clearly being deprived of exercising his first amendment right to protest? At the time, the answer was no. The result of the case was a unanimous ruling (!!!) in favor of the government, declaring that what Mr. Shenck did might have been okay during peacetime, but he did not have 1A protections because his speech constituted a "clear and present danger," in that it might encourage conscripted soldiers to desert or avoid service during the war.

Woah, but what does any of that have to do with "fire in a theater"? It is this case where we can find and attribute the quote to Justice Oliver Wendell Holmes, who was tasked with delivering the opinion on behalf of the court. In it, he attempted to make an analogy to the limitations of free speech:

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

However, the problem with the co-opting of Holmes's analogy is that nobody is arguing that freedom of speech is absolute. The issue at hand was whether or not distributing antiwar leaflets to conscripted soldiers is a form of protected speech, and the analogy didn't really serve much relevance in answering the question. If I were to declare that singing "drivers license" is obscene and should be illegal, and my argument to support it was "Well, there are limitations to the 1st amendment. You can't shout fire in a crowded theater, after all," most reasonable people would immediately recognize that as fallacious logic.

Oh, and by the way, Schenck v. US was almost completely overturned 50 years later in Brandenburg v. Ohio (1969). Read it. There's plenty of controversial things you can do or say now that are generally legal*, such as:

• Distributing antiwar leaflets to conscripted soldiers
• Burning flags
• Saying dumb inaccurate shit on Fox News if you really believe it
• Protesting a dead soldier's funeral
• Almost anything that is colloquially known as "hate speech"
• General advocacy for the extinction of any group or race, including the human race (@damnedbyfate)
• General advocacy for violence against any group or race, including the punching of Nazis
• Being a politician and giving an incendiary speech that causes a riot at the Capitol oopsies lol
• Shouting fire in a theater when the theater is full of lawyers

*None of this should be considered legal advice.

So anytime you're thinking of saying "hate speech isn't free speech" or "you can't shout fire in a crowded theater," please kindly consider expanding your legal acumen. From one non-lawyer to another.

[Gario]

hate speech is free speech

incitement isn't free speech

hate speech isn't analogous to shouting fire in a crowded theater, whereas incitement is

laws against vocally shouting violent intent and such are based on this incitement exception to the 1st amendment

hate speech isn't necessarily incitement, so it's protected by the 1st amendment, for better or worse

[FinaLee]

At 1/12/22 06:02 PM, Gario wrote: hate speech is free speech

incitement isn't free speech

hate speech isn't analogous to shouting fire in a crowded theater, whereas incitement is

laws against vocally shouting violent intent and such are based on this incitement exception to the 1st amendment

hate speech isn't necessarily incitement, so it's protected by the 1st amendment, for better or worse

While regular people like you and me might have a fairly similar idea to what incitement means, the legal standard for incitement is much higher. From Brandenburg v Ohio:

"…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 and is likely to incite or produce such action."

"Statutes affecting the right of assembly, like those touching on freedom of speech, must observe the established distinctions between mere advocacy and incitement to imminent lawless action…"

In other words, it is not enough that someone advocates for imminent lawless action for it to be an exception to the 1st Amendment. The speech must also meet the criteria of being likely to incite or produce illegal behavior. If Clarence Brandenburg can say:

"We're not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken."

then you should consider any speech that seems equally as malicious to be legal as well.

[EdyKel]

I found a lot of Google links that all seem to discourage people from using it. But, I'm going to be bit of a contrarian here. I think it's okay to use it in certain circumstances, despite that it was horribly misused by the government in espionage "cases" after Congress passed the 1917 Espionage Act. That doesn't change the fact that the true origins of the phrase started before it was used in the Schenck v. United States case in 1919. Before then, people were crying fire in theaters, leading to panic, which caused injury and death.

I think that there are certain limitations to free speech. And I think that "free speech" is just as misunderstood as 'crying fire in a crowed theater" by a lot of people. The big differences being on private and public property, and who is filing charges against the person who claims they were expressing free speech.

Obviously, those with private property (social media these days) can kick people off it, or even sick law enforcement onto those who refuse to leave or who make threats agaisnt them or others - or break other rules. But when it comes to government, that is totally different. We have the 1st amendment in the US Constitution to guarantee our right to free speech agaisnt government. It protects our views from being suppressed by it. This guaranteed right does not protect us from everything - you can't claim freedom of speech to get out of a speeding ticket, loitering, showing child pornography, ect.

And while there are many people on the right claiming that they are being silenced on social media, and denied free speech, with Conservatives crying the loudest over it, it's scary watching them back govermnet attempts to clamp down on free speech to silence their critics. Trump was bad at it, but Florida's governor, Ron DeSantis, is even worse, with his attacks on social media, schools, and BLM protestors.

[FinaLee]

At 1/12/22 07:06 PM, EdyKel wrote: I found a lot of Google links that all seem to discourage people from using it. But, I'm going to be bit of a contrarian here. I think it's okay to use it in certain circumstances, despite that it was horribly misused by the government in espionage "cases" after Congress passed the 1917 Espionage Act. That doesn't change the fact that the true origins of the phrase started before it was used in the Schenck v. United States case in 1919. Before then, people were crying fire in theaters, leading to panic, which caused injury and death.

Oh shit! I forgot all about this article. Very good and informative read that captures the spirit of this thread.

Obviously, those with private property (social media these days) can kick people off it, or even sick law enforcement onto those who refuse to leave or who make threats agaisnt them or others - or break other rules. But when it comes to government, that is totally different. We have the 1st amendment in the US Constitution to guarantee our right to free speech agaisnt government. It protects our views from being suppressed by it. This guaranteed right does not protect us from everything - you can't claim freedom of speech to get out of a speeding ticket, loitering, showing child pornography, ect.

And while there are many people on the right claiming that they are being silenced on social media, and denied free speech, with Conservatives crying the loudest over it, it's scary watching them back govermnet attempts to clamp down on free speech to silence their critics. Trump was bad at it, but Florida's governor, Ron DeSantis, is even worse, with his attacks on social media, schools, and BLM protestors.

Watching legally illiterate people cry about free speech on Twitter is indeed entertaining, especially when that kind of anger makes its way into local laws, only to be stricken down by a judge weeks later. DeSantis has had his own run-ins with the courts, but at the end of the day, I'm pretty sure he's aware it's all performative bullshit that just makes him seem like he's doing something for his base.

[orangebomb]

Compared to a lot of other countries, freedom of speech goes a lot farther in America. Even with that however, a lot of people seem to misunderstand what freedom of speech entails and what you can and cannot say, and where. In short, it simply means that the government can’t stifle your speech as long as it doesn’t promote treasonous actions or violence, but like with any law, people will find loopholes, context and certain clauses that will justify their behavior and a government that can be inconsistent when it comes to defining what those freedoms cover.

This is part of the reason why the Constitution was purposely malleable and open for interpretation beyond the foundation, to account for many possible variations based off of social and cultural attitudes and events. Private entities don’t have to follow those rules and never did, but whether through simple ignorance or just looking for an easy target to pass the buck towards, there are just some people who proclaim that their freedoms are being “violated” when something doesn’t go their way and don’t know when to stop talking.

[Gario]

At 1/12/22 07:02 PM, FinaLee wrote:
While regular people like you and me might have a fairly similar idea to what incitement means, the legal standard for incitement is much higher.

you are correct

my language isn't tuned to the exact legal definition, but that was what i meant to say

surely

[Yanclae]

"freeDOM OF speech"