Why Claiming Shouting Fire in a Crowded Theater is Illegal Distorts Conversations About Online Speech
September 26, 2022
No, shouting fire in a crowded theater is not illegal (despite what Supreme Court Justice Oliver Wendell Holmes said). Yet, the phrase, shouting fire in a crowded theater has been misconstrued to be equivalent to yelling bomb on an airplane or yelling assassination at an open-air political rally; this conflation of the concept sets up bogus equivalences that distort any conversation about online speech. Let’s break it down, and examine why shouting fire in a crowded theater doesn’t constitute incitement or illegal speech online either.
No, shouting fire in a crowded theater isn’t illegal
In 1919, the US Supreme Court heard Schenck v. the United States and ruled that speech that produces a clear and present danger to public safety may be restricted by law. The case dealt with leaflets urging draft-age men to resist being drafted into the military during World War I.
Arguing that this speech would cause harm to enlistment numbers, the Justice Department was successfully able to have Charles Schenck sentenced for violating the Espionage Act of 1917. Specifically, Schenck was convicted of mailing treasonable material intending its delivery to be used in times of war.
If shouting fire in a crowded theater did produce clear and present danger (unlikely given the history of theaters), then there are existing laws protecting against such abuse.
No, shouting fire isn’t like shouting rape
The founders of Twitter felt the paper and printing presses analogy was not only too narrowly tailored to print media, but also ignored that theatergoers today rarely meet their end by fire – rather, it’s some mishap with a sharp object. In response, they created the company’s slogan: Twitter is what’s happening.
This motto, in contrast to Gilbert’s analogy of shouting fire, more closely aligns with the transformative nature of free speech: much like standing on stage at the Globe Theatre and yelling fire, Twitter grants any speaker the power to broadcast something from anywhere.
And as history has shown us time and again – as recently as this morning with President Trump’s reckless 3 AM tweets about North Korea – social media platforms are undeniably catalysts for real-world change.
No, prosecuting people for shouting fire isn’t a slippery slope
People who shout fire in theaters, cinemas, and other crowded spaces risk hurting people by inciting panic, but these cases are usually prosecuted with the charge of causing a public nuisance. It’s not an issue of free speech because shouting fire is illegal even if it’s true that there’s a fire.
To be prosecuted for doing so, one must do so knowing that it would create an imminent danger to others or cause injury. The National Alliance on Mental Illness explains that the charge can be brought only when the actions have created or caused an unreasonable risk of serious physical harm to another individual or death.
Yes, there are implications to what you say online, just as there are implications to what you say offline
First, shouting fire in a crowded theater has always been illegal and always will be illegal. That is because it presents an immediate danger to the safety of the people inside the theater. But there are many different examples of speech online that do not present any immediate danger.
If someone posts hateful comments on Facebook or tweets racist opinions, they can do so without any physical harm coming to anyone else. The person on the other end of the computer can’t hear you, and they can’t feel your hate. This has led some people to say that freedom of speech only means you have the right to express your opinion—as long as it isn’t inciting violence or presenting an immediate physical threat like yelling fire in a crowded theater does.
Yes, online speech has been used by courts to shut down physical protests
In its infamous World Wide Web decision of 1995, the Supreme Court ruled that political activists who falsely claimed it was illegal to shout fire in a crowded theater online were not protected by the First Amendment. Activists would intentionally call out the fire in an attempt to disrupt the discussion on the USENET newsgroup alt. culture. Jewish, prompting an outpouring of anti-Semitic posts.
Such false claims about shouting fire are not protected speech when there’s potential for damage to life and property, as courts have reasoned it could be dangerous for people with hearing disabilities to read about ‘shouting fire’ without context or warning that such speech can lead to physical disruptions (such as stampeding) which might endanger lives.
Yes, free speech does have legal boundaries and limits
With the free speech wars come raging back into the discourse, it’s crucial to differentiate between two different types of speech. Fighting words are said with the intent to start an immediate fight and they cannot be protected under the First Amendment.
I’m not going to touch on that type of speech today because this post doesn’t center around it. However, shouting fire in a crowded theater does not constitute fighting words- it falls under another category entirely. Falsely claiming something illegal dilutes any conversation about online speech, as internet laws are only vaguely defined but generally well-accepted.
Keep browsing Law Scribd for more updates.