Ken White explores the origins of the expression “You can not yell ‘fire’ in a overfilled theater” and also whether or no it actually calls because that exceptions come the very first Amendment.

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Michael Kazin

Michael Kazin is one American historian and professor at Georgetown University and also is co-editor of Dissent magazine. Kazin’s research interests are American social...

You are watching: Can you yell fire in a crowded theater


Nat Brandt

Nat Brandt is the writer of “The man Who Tried to Burn new York,” which won the Douglas Southall...


Ken White

Ken White is a very first Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los...


“You can’t yell ‘fire’ in a crowded theater” is just one of the most commonly used very first Amendment catchphrases — but does the really assistance exceptions to totally free speech? The answer to this question have the right to be found in the works of supreme Court justice Oliver Wendell Holmes. That penned the phrase in 1919, not to justification moderate borders on speech, yet to justify government prosecution the those speak out against the draft.

In this episode of do No Law, the first Amendment Podcast through Popehat.com, organize Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls because that exceptions come the very first Amendment. Featured guest include history professor Michael Kazin, that shares his understanding of the WWI effort and also the result tension, and author Nat Brandt, who broadens on what make fire in a theatre such a powerful analogy. Ken also discusses the Espionage action of 1917 and also the duty of Oliver Wendell Holmes in the background of cost-free speech.


Transcript

Make No Law: The an initial Amendment Podcast

Fire in a crowded Theater

Male Speaker: friend can’t cry fire in a overfilled theater.

Male Speaker: yet you can’t scream fire in a crowded theater.

Female Speaker: You are not enabled to go into an auditorium and also yell, fire, fire, fire.

Male Speaker: ns mean, think around it, us all think in the first Amendment, the guarantee of free speech, yet we accept that “You can’t yell ‘fire’ in a overfilled theater”.

Ken White: “You can not yell ‘fire’ in a crowded theater”, that the most popular and widely recognized catchphrase about complimentary speech. It’s America’s go-to way to to speak that complimentary speech is not absolute and also that the an initial Amendment has exceptions, return there space variations.

Female Speaker: Because the constitution does no say the a person can yell ‘wolf’ in a crowded theater.

Ken White: you hear that on TV and also read that in newspapers. It’s invoked by university students and also professors, politicians and also radicals, lawyers and clergy and everyone in between, yet does it mean anything and also where does it come from? to answer that, we have gained to go back a 100 year to the source.

The legendary supreme Court justice Oliver Wendell Holmes, Jr., who was composing in 1919 and we have gained to look in ~ what he in reality said rather than the means we misquote it.

Justice Oliver Wendell Holmes, Jr.: “The many stringent protection of cost-free speech would certainly not protect a guy in falsely shouting fire in a theatre and also causing a panic.”

Ken White: the was an analogy. The first Amendment case before Holmes wasn’t around a fire. It wasn’t about physical danger of any type of kind. Oliver Wendell Holmes provided that analogy to justify the government jailing someone because that speaking out versus the draft.

I to be Ken White, and also this is do No Law: The very first Amendment Podcast indigenous Popehat.com, carried to you on the Legal speak Network.

This is Episode, 7 Fire in a overfilled Theater.

Ken White: The shout of fire Oliver Wendell Holmes to be talking about was opposition to the armed forces draft and also his theater was America’s entry into human being War I. The great War, a war to end all wars, began in august 1914, but America didn’t obtain into it till April 1917. It was an unpopular war with countless Americans.

I talk to Professor Michael Kazin in ~ the background Department that Georgetown University. He composed a book called ‘War versus War: The American Fight for Peace, 1914-1918’. Ns asked him around the unpopularity of the war in America.

Michael Kazin: There were anarchists, as I mentioned, favor Emma Goldman; over there were likewise what girlfriend might call the left-wing populist, Robert La Follette, the eloquent Senator from Wisconsin had actually voted versus the war in 1917. He continued in some ways to speak out versus the war and also got in trouble, was practically expelled native the Senate because that speaking out versus the war.

I think there to be a basic sense amongst a many of people in the country, though most likely not a majority, especially negative people, African-Americans, and also Whites that this to be what one anti-war activist referred to as a rich man’s war and a bad man’s fight. And also it to be clear the richer Americans, specifically from brothers backgrounds tended to assistance the war, whereas americans from ireland backgrounds, of food German backgrounds, Jewish backgrounds, and also a lot amongst others too tend to be leery that it, believing that this was no a war that was going to help them have actually a much better life.

Ken White: One particular component of the war that was especially unpopular was the draft, passed in 1917.

Michael Kazin: The idea of the breeze was unpopular in America, a nation which after every was — which our sort of nationwide religion in some ways, secular faith was self-reliance, individualism, the idea that the federal government shouldn’t be able to force girlfriend to do something girlfriend don’t desire to do. And also of course, the idea that federal government can pressure you to, if you room a young man, to get in the military and risk her life was something the — there was even some world who sustained the battle were not crazy about that.

(00:05:05)

The speak of the residence of Representatives, because that example, a Democrat named Champ Clark, that voted to declare war was protest to the draft. He said in a decided opposing the breeze in the Floor the the home of Representatives, the said, “In the estimate of Missourians there is precious little difference between a conscript and also a convict.”

So through mainstream democracy in the, what to be then the President’s Party, the Democrats, saying that sort of thing, you can imagine there was a lot of unhappiness. And there were a many Americans who withstood the draft just by no cooperating with the government, which was a lot simpler to execute 100 years ago when a many of people didn’t have actually government documents with them, and also they weren’t really well-known to the government in the way pretty lot everyone is known to the federal government now.

Ken White: but America could not fight there is no conscription. It simply didn’t have the army.

Michael Kazin: You know, there was a actual fear, ns think, that President Woodrow Wilson had, conference had, the righteousness Department had that if you permitted Americans come speak the end freely versus the conscription regulation that it would encourage american to disobey it, and that would make the very difficult to progressive the sort of army, huge army the those who sustained the war assumed was necessary.

The us military enhanced tremendously during the war. Human being don’t really, i think, appreciate that there were fewer 보다 200,000 men in the military before the battle was asserted in 1917, and by the finish of the war, there were 4 million males in the army. Therefore that’s an increase in military pressure that US has actually never seen prior to really and that necessitated have a draft approach.

Ken White: include to that one more fear, the are afraid of the other, the immigrant, the ethnically tinged anxiety around a country that now includes human being from the very countries the we would be fighting.

Michael Kazin: Also, i think a feeling that in a nation which is complete of immigrants, countless of who were no well assimilated, didn’t speak English, didn’t desire to it is in assimilated necessarily, often had loyalty to their home countries which to be fighting versus one one more in this great War overseas, that there was a feeling that if you didn’t force people to go along with the war effort and also go together with the conscription law that the country can fall apart.

The melt pot in reality was not melting. There were a many so-called hyphen Americans as Woodrow Wilson dubbed them that refused to provide up their hyphens, their international ethnicity. So the was more than likely what to be going on as well I think.

Now, the course, this particular day we have actually a most resentment by part people against immigrants, but a most other immigrant of food speak English and are part of American life. But then i think there was an ext of a feeling that America to be fragmented between people from various nationalities and different gyeongju groups and I think the fear was the if over there wasn’t coercion, climate the fragmentation would continue and America can actually be can not to hit the battle effectively.

Ken White: There’s nothing much more dangerous to liberty than a fear Congress, and also this was no exception. In June 1917, simply two months after proclaiming war, conference passed the Espionage action of 1917. The Espionage action prohibited, among other things, speech, willfully leading to or attempting to reason insubordination, disloyalty, mutiny, refusal of duty in the armed forces, or willfully obstructing the recruiting or enlistment organization of the unified States.

President Woodrow Wilson had actually been agitating because that a regulation like this for years, even back when he was nominally do the efforts to keep us the end of war. Here is what he said around it in his State that the Union resolve in 1915.

President Woodrow Wilson: “I am i m really sorry to say the the gravest threats against our nationwide peace and safety have actually been uttered in ~ our own borders. There space citizens of the united States, ns blush to admit, born under various other flags however welcomed under our generosity naturalization laws to the full freedom and opportunity the America, who have poured the poison of disloyalty right into the an extremely arteries the our national life; who have sought to bring the authority and great name the our government into contempt, to destroy our industries wherever they assumed it efficient for their vindictive objectives to strike at them, and to debase our politics to the uses of foreign intrigue.

(00:09:56)

Ken White: carry out you desire an Espionage Act, since that’s exactly how you obtain an Espionage Act.

This will not be the critical time you hear about the loathsome and un-American Espionage act on this podcast. The 20th Century saw it supplied time and also time again against dissenters. Its usage in world War ns was specifically vigorous and to our modern years, particularly outrageous.

In might 1918, one activist named Rose pastor Stokes was sentenced to 10 year in commonwealth prison by a referee in Missouri. She to be sentenced because that a letter come the editor that stated I am because that the civilization while the federal government is for the profiteers. The judge claimed our militaries on the field can succeed just so far as they space supported by the folks at home.

In Kentucky, a guy was prosecuted because that a pamphlet that said that military business should be voluntary, made up of civilization who want to fight and that civilization who did no agree with the war, should not need to fight.

Into this soup the fear and also censorship go Charles Schenck. Schenck to be a socialist, the general Secretary the the U.S. Socialist Party in Philadelphia. The socialists were strongly against the war. He and also his compatriots drafted a leaflet, a double-sided piece of file covered in little print, railing versus the war. They sent out it to 15,000 guys who had actually been drafted to fight.

The leaflet combined a rousing celebration event of constitution rights, through both socialist and also anti-war rhetoric. It was headed in huge bold type, long live the constitution of the joined States. Wake up up, America. Your Liberties space in Danger. A lot of the leaflet sounds choose something the end of a patriotic rally.

Charles Schenck: The structure of the united States is one of the greatest bulwarks of political liberty. It to be born after ~ a long, stubborn fight between king-rule and also democracy. In this battle, the civilization of the joined States established the principle that the flexibility of the individual and an individual liberty space the many sacred things in life. Without them, we become slaves.

For this principle, the fathers fought and died. The facility of this principle they sealed v their own blood.

Ken White: The rest of the leaflet to be strongly anti-war, with a socialist sensibility. It compared being a conscript to gift a slave or a convict forced to kill or die versus your will.

It said that the war was the will certainly of the elite of wall Street, not the will of the people, and also it said conscripts come assert your rights. It didn’t phone call them to riot or fall the federal government or interact in violence, it told lock in a quite nonspecific means that they must not send to intimidation and they must exercise their ideal to assert their opposition come the draft and also that they have to resist the government’s post that the war was just.

Charles Schenck: will you was standing idly by and see the Moloch of Militarism reach forth throughout the sea and also fasten that tentacles upon this continent? are you ready to send to the deterioration of having actually the structure of the United states treated as a “mere scrap that paper”?

Do you know that patriotism method a love for your country, and not a dislike for others? will certainly you it is in led astray through a propaganda of jingoism masquerading under the guise that patriotism?

Ken White: Schenck to be arrested, charged, and also convicted under the Espionage Act and for misusing the United claims mails. And how is this because that swift justice, the regulation was pass in June, Schenck to be indicted in September and he to be convicted in December, all of 1917.

Charles Schenck unsuccessfully said that his decided was safeguarded by the very first Amendment and he took that dispute all the means to the supreme Court. His debate was the noticeable one, how have the right to we be a totally free society if us can’t controversy whether a war is simply or unjust?

Here is what his lawyers wrote in a supreme Court brief.

Male Speaker: If all adversaries of a war room suppressed and all proponents of a war are given totally free rein, is it no conceivable the a peace–loving president could be prevented indigenous making one early, honorable peace, started on justice. How have the right to the citizens uncover out even if it is a battle is simply or unjust uneven there is free and complete discussion. If the is criminal come say the Draft law is wrong, then it is criminal come say that any kind of law is wrong, for the Constitution, we room told, is not suspended with time of war; however we dare not strike it or our form of government.

Ken White: The government’s brief was quite dismissive, call Schenck’s appeal come the an initial Amendment frivolous and insubstantial. The can be fried Court in one opinion written by justice Holmes made brief work the Charles Schenck’s argument. This to be the dawn of very first Amendment analysis. Also though the amendment was 130 years old, there were virtually no situations exploring just how it worked or what it meant or what exception to it there could be.

(00:15:12)

Lawyers speak that negative facts make bad law. This facts, an apocalyptic war in a troubled nation, were really bad. Righteousness Holmes claimed that the gravity of the situation, the war justified the restriction on speech.

Justice Oliver Wendell Holmes, Jr.: The inquiry in every situation is whether the words provided are supplied in such circumstances and also are of such a nature as to create a clear and also present peril that they will certainly bring around the substantive evils that Congress has a appropriate to prevent. The is a inquiry of proximity and also degree. When a country is at war, many things that can be said over time of peace are together a hindrance come its effort that your utterance will not be endured so long as guys fight, and that no Court can regard castle as defended by any type of constitutional right.

Ken White: the phrase, clear and also present danger, slowly ended up being not simply a catchphrase, however a test of when the government could punish speech despite the very first Amendment. It would certainly be the test because that 50 years. Girlfriend might notice how circular the is. Speech can be punished if there is a clear and also present hazard that it will bring around the evil the Congress has a right to prevent.

Okay, yet what walk Congress deserve to prevent? go Congress have a ideal to protect against an opinion, a state the mind, a wave of opposition come what congress wants? go Congress deserve to prevent me from persuading girlfriend of something conference doesn’t like?

It’s pass out really. Not lot of a restriction on federal government power in ~ all. In support of its conclusion, Holmes also uttered the immortal phrase around fire in a theater.

Justice Oliver Wendell Holmes, Jr.: We admit that, in many places and also in ordinary times, the defendants, in saying all that was claimed in the circular, would have actually been well within your constitutional rights. However the personality of every act relies upon the scenarios in which that is done. The many stringent defense of totally free speech would certainly not protect a male in falsely shouting fire in a theatre and causing a panic.

Ken White: Holmes was a famously gifted writer, renowned for his ability to evoke an emotional solution with his writing. This analogy come a fire in a theatre was fine calculated to obtain just together an emotionally response. The doesn’t hit us in the gut below in 2018, but in 1919, invoking a fire in a theater resulting in a scare was a an effective rhetorical device.

The 19th and early 20th Century was a time the deadly theatre fires. Building was shoddy. Theaters were firetraps and people still provided candles and also lanterns. The an outcome could be catastrophic.

On December 30, 1903, the Iroquois theatre in Chicago burned. It had been supported as a modern-day safe theater, yet it wasn’t. Throughout a weekday matinee the a musical, a spark from a light recorded a phase curtain. Gibbs on the stage tried to calm the crowd, i beg your pardon was largely women and children, yet they failed.

The crowd panicked, and at the end of it, an ext than 600 men, women, and children had actually died, passed away from the flames, died from smoke, passed away from gift trampled or pressed to death in a desperate sirloin to gain out.

Nat Brandt created a book around the Iroquois fire called, relatively enough, ‘Chicago fatality Trap’. I speak to him about how usual these fires were and also how they play on the psychic of the public in this time period.

Nat Brandt: take the Iroquois Theater, because that example, one absolutely new theater. It opened up up in November of the year and also this was December now. They had sliding gates going as much as the balcony and also the gateways were — in bespeak to obtain to the balcony, you would certainly pass increase the last trip of stairs and then the gateways were pulled across and locked, for this reason that people couldn’t drift down and try and get far better seats in the orchestra. They were retained locked. I average you would never do that this day or you shouldn’t.

(00:19:59)

There to be no leave signs; they hadn’t been placed up yet. They were still being operated on. There were so countless things that were omitted. There to be fire hoses, however no water for the hoses; that hadn’t to be attached yet. I mean you surname it and it walk wrong.

Ken White: The fear, the visceral fear of this fires assisted drive the casualties, because people reaction to the fires with sheer deadly panic.

Nat Brandt: Well, the ushers, all of whom to be teenagers, there to be no fire drill for the ushers; what they should do, wherein they must lead people, and there were definitely no indications pointing as to where the exits were. Therefore yeah, that was just madness.

Ken White: for this reason today, in 2018, when we check out the analogy, this speech is favor shouting fire in a theater and causing a panic, we largely think of just how trite the phrase is. However when Holmes used it, he to be invoking some of America’s most primal fear at the time.

I think to get the very same emotional an answer now you could have to use the analogy, this speech is favor shouting that has gained a gun at a school.

To us, it’s ridiculous the such mild anti-war rhetoric together Schenck’s, couched in referrals to the Constitution, heavily supported with explicitly patriotic appeals, could be seen as comparable to a terrible fire. Yet 1919 was various than 2018. The government’s are afraid that it wasn’t particular it can script anyone it essential was real, and also even despite the war ended in November 1918, there was another fear lurking, the fear of revolution.

Here is Professor Kazin again.

Michael Kazin: when there were transformations happening, when the Schenck case was decided, actually in 1919, ~ the war had ended, a couple of months afterwards, over there were changes in Germany, attempted people in Italy, in China; 1919 was a year type of choose 1968, i m sorry is what human being are talking around a lot this days, where revolutionary movements and also revolutions seemed to be popping up everywhere. For this reason there to be a real fear that that would occur in the United says as well.

In Seattle, there to be a basic strike i beg your pardon shutdown the city and some civilization talked around the Seattle Soviet, whereby workers would run the city and also maybe walk on to operation the state and maybe even shot to run the federal government itself.

So this to be a blatant time and the federal government crackdowns were i think popular among most Americans, due to the fact that they to be afraid that America would certainly be readjusted to a past recognition.

Ken White: fear drives censorship. Therefore what go it median that friend can’t falsely scream fire in a theater and also cause a panic? Ultimately, it was simply a florid method to say the the very first Amendment is not absolute. It’s a means to speak the very first Amendment shouldn’t be absolute, that we have the right to imagine speech that we can agree would certainly be exterior of it. It’s a classic argument to test the viability of a ideal by applying it come the most horrible conduct we have the right to imagine. In various other words, it’s pure rhetoric, no substance.

But what does it typical today, in 2018? What go it average when people repeat that to assistance some limit on totally free speech or on various other rights? What legal load does it have?

It really way absolutely nothing. It’s a rhetorical maker to to speak the first Amendment is not absolute, i m sorry is true, however that’s not in dispute. So unless you to speak it in response to who who states the federal government can’t punish any type of speech whatsoever, it does not breakthrough the discussion you are making. The doesn’t to speak a solitary thing the substance around whether the speech you space talking about is defended by the very first Amendment.

It’s together if us were looking at an animal on the next of the road trying to decide what that is and I said not all pets are cats. Her reaction would certainly be yes, give thanks to you, ns am aware, yet the concern is, what is that animal? We have actually the devices we need to decide what that pet is on the side of the road. With totally free speech those tools room a 100 year of can be fried Court cases.

Back in illustration 5, ns talked about the case, United says v. Stevens, the crush Videos case. Ns am quiet hearing from some of you about the sound results on that one. The was such a sordid small case, however so important. It to be important due to the fact that the supreme Court offered it to describe how us go about answering this question.

(00:24:50)

Now that we have agreed that not all decided is protected, is this specific speech we room talking around protected? The prize is that first we begin with a presumption that a legislation punishing speech for its content or message or subject issue violates the very first Amendment.

We watch to view if the speech falls into a brief list of well-defined historical exceptions come the an initial Amendment; obscenity, defamation, fraud, speech that’s integral come criminal conduct. And if the decided doesn’t autumn into among those narrow categories, the federal government cannot border it, uneven it have the right to pass that incredibly difficult test referred to as strict scrutiny, which is virtually always fatal.

So just how much does speak you can’t shout fire in a theater aid you in doing that analysis? no a bit. It’s north words. Every time someone claims it I get a little much more misanthropic.

That’s the end of the totally free speech story the Charles Schenck, yet it’s no the end of the complimentary speech journey of Oliver Wendell Holmes. Just how did the male who crafted history’s many useless cliché about totally free speech become one of free speech’s heroes? friend will have to wait because that the next episode to find out.

In this collection of podcasts, I will be telling an ext stories behind important very first Amendment decisions. If there is a situation you want to hear about or a very first Amendment concern you would favor answered top top the podcast, fall me a line at .

Thanks because that listening. Girlfriend can find documents and cases stated on this podcast in ~ popehat.com or znjke.com.

If you liked what friend heard today, you re welcome remember to rate us in apologize Podcasts or follow united state on Twitter or Facebook.

Lastly, i would favor to say thanks to our participants, voice actors, producers and audio designers for their participation. My guests Nat Brandt and Professor Michael Kazin; ours voice actors, man Talifer together Justice Oliver Wendell Holmes, Bob Story as President Woodrow Wilson, Justin Jefferies as Charles Schenck and also Mark Oblinger as Schenck’s lawyer, Producer Kate Nutting, executive, management Producer Laurence Colletti, research study Assistant Jordan Miller, and also last yet not least, music, sound design, editing, and mixing by Adam Lockwood and assisted through Kelly Kramarik.

See you following time for episode 8, Fighting Face.

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