The Problem with the “Fire in a Theatre” Attack on Free Speech

Today we’re discussing the oft-cited but little understood quote about “fire in a theatre.” If you’ve ever discussed free speech at any length in the American context, it’s almost inevitable that someone has mentioned it. It’s kind of like the free speech version of Godwin’s Law.
In case some readers aren’t familiar with this idea, here’s the full quote from Justice Holmes: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
This idea is generally deployed as an argument to prove that some curtailment of free speech is acceptable–obviously, we can’t allow a man to yell fire in a crowded theatre. Thus, it can change the entire nature of the free speech conversation. It’s no longer a question of whether it is right and just that free speech can be punished; it is a question of how much and when. Suddenly, everything’s on the table. Those antiwar protesters might be demoralizing the troops and imperiling our safety. Those civil rights protesters are clearly disturbing the peace and infringing on the rights of others. And so on.
However, it turns out the context of the “fire in a theatre” quote is very important. Writing at The Atlantic, Trevor Timm reminds us that in fact, this argument was offered as part of a case that had literally nothing to do with fires, theatres, or even yelling. Rather, it was a case in which President Woodrow Wilson’s Administration was trying to prosecute an antiwar pamphleteer during World War I. And indeed, the Supreme Court agreed with the Administration, in the first of a series of damaging decisions to free speech. However, because the “fire in a theatre” quote had nothing to do with the case at hand, it did not constitute established legal precedent. It was merely the rhetorical flourish of a Justice who was trying to introduce his opinion, against free speech. In itself, the quote had no direct impact on the law at all, even at the time it was given.
Years later, its irrelevance was further cemented in Brandenburg v. Ohio, when the Supreme Court effectively overturned the earlier decision and restored free speech protections significantly. This decision was issued in 1969.
So in summary, the quote was not binding precedent when it was mentioned in an opinion in 1919, and in 1969, that entire opinion was reversed anyway. It never mattered, and it certainly does not matter today.
I confess I’ve always found the “fire in a theatre” argument rather annoying. On the one hand, it relies on the very lazy and unpersuasive technique of appealing to authority–in this case, the Supreme Court. Additionally, it’s usually kind of beside the point. If you and I are having a theoretical (and entirely inconsequential) discussion about free speech protections, it makes no sense for you to base your argument on what is existing law. The point of the conversation would presumably be to discuss what we think the laws should be. Similarly, if we’re having a debate on marijuana legalization, your main point cannot be “well, it’s illegal.”*
That said, since the Supreme Court is taken as the law of the land, it’s inevitable that many people will weigh their judgment heavily. That is why the “fire in a theatre” argument matters, and why advocates of free speech must be prepared to discredit it.
Check out Timm’s great article for more details on this:
*In case you wanted one more example, I’m inclined to note that Presidential Candidate Ben Carson employed similar reasoning in the context of gun rights. We wrote about that embarrassing episode here.

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