Those who want to limit freedom of speech are misusing Oliver Wendell Holmes’s famous 1919 line about ‘shouting fire in a theater’
In any debate today about how to respond to “offensive” or “inflammatory” speech, it is only a matter of time before somebody trots out that most familiar of talking points. “There is no right,” the opiner will say, “to shout fire in a crowded theater!”
Taken from a 1919 Supreme Court decision by Justice Oliver Wendell Holmes, the fire-in-a-crowded-theater standard seldom gets much scrutiny. It tends to shut down discussion rather than to open it up. But that shouldn’t be—it is a flame well worth extinguishing.
First, its meaning has been inflated and distorted beyond recognition.
The 1919 Supreme Court case concerned Charles Schenck, secretary of the U.S. Socialist Party, who was convicted under the Espionage Act for distributing anti-draft leaflets during World War I. The justices unanimously upheld Schenck’s conviction and dismissed his plea for free speech.
Writing for the court, Justice Holmes conceded that “in many cases and in ordinary times,” the defendant’s words would have been perfectly legal—but not in the extraordinary times of world war. The key issue, Holmes concluded, was “the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”