"Falsely Shouting Fire"

Abstract

Over one hundred years ago, in a case called Schenck v. United States, Justice Oliver Wendell Holmes created a meme. Holmes wanted to illustrate why freedom of speech was not—and could never be—absolute. “The most stringent protection of free speech,” Holmes wrote, “would not protect a man in falsely shouting fire in a theatre and causing a panic.” It might have surprised Holmes to know that more than a century later, his claim about the constitutionality of false cries of fire in theaters has become one of the most famous hypotheticals in American constitutional law. Despite, or perhaps because of, its prominence, the meme has come to be heavily criticized as misleading and pernicious, and as justifying an overly restrictive view of speech protections.  

In this article, we attempt to add light (but not heat!) to the conversation about false cries of fire in crowded theaters by taking a close look at how the fire meme was employed in Schenck and how it has been subsequently interpreted. As we explain, the problem is not that those who invoke the fire meme are relying on a “legal irrelevance” that “hasn’t been the law in the U.S. for almost 50 years.” The problem is that those who invoke it tend to rely on an overly reductive view of how public discourse works in the digital age (one which conceives of its participants as lemmings, more or less).  

Another way of putting this is to say that looking again at the fire meme pushes us to think about the limits of the First Amendment in more nuanced ways than the inside baseball conversation about false cries of fire in crowded theaters often permits.

Read the authors' manuscript from the Journal of Free Speech Law.