Malcolm Rivera
The idea that yelling fire in a crowded theater is illegal is a commonly cited but misunderstood piece of First Amendment theory. The phrase originates from a 1919 Supreme Court case, Schenck v. United States, where Justice Oliver Wendell Holmes Jr. used the analogy to argue that the defendant's anti-draft speech during World War I was not protected by the First Amendment. While the Schenck case has since been partially overturned, the phrase has become synonymous with speech that is not protected by the First Amendment due to its potential to provoke violence. However, whether yelling fire in a crowded theater is illegal depends on the specific circumstances and the intent of the individual. There may be instances where yelling fire is done to warn others of danger and would be protected under the First Amendment.
| Characteristics | Values |
|---|---|
| Legality | Yelling "fire" in a crowded theater is not necessarily illegal. |
| First Amendment protection | The First Amendment does not protect the right to falsely yell "fire" in a crowded theater to cause a panic. |
| Charging | Depending on the circumstances, one could be charged with disorderly conduct or criminal endangerment. |
| Liability | If someone is injured, the person who yelled "fire" could be held liable. |
| First Amendment protection | The First Amendment protects the right to yell "fire" if there is a fire or if one believes there is a fire, to warn others of danger. |
| Context and intent | The legality of yelling "fire" in a crowded theater depends on the context and intent of the person yelling. |
| Supreme Court test | The Supreme Court uses a specific test to limit potentially dangerous speech: the speech must incite imminent lawless action. |
| Indianapolis municipal code of 1917 | The code made it illegal to " [cry] out a false alarm of 'fire' in any church, public hall, theater, moving picture showroom, or any other building of a similar or different character, while the same is occupied by a public assemblage." |
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What You'll Learn
Yelling fire in a crowded theater is not necessarily illegal
Yelling "fire" in a crowded theater is not necessarily illegal. The First Amendment does not protect the right to falsely yell "fire" in a crowded theater to cause a panic. Depending on the circumstances, one could be charged with disorderly conduct. If someone is injured, one could be held liable. However, the First Amendment does protect an individual's right to yell "fire" if there is, in fact, a fire, or if they believe there is one, and they are attempting to warn others of the danger.
The phrase originates from a 1919 case, Schenck v. United States, in which Justice Oliver Wendell Holmes Jr. stated: "The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre and causing a panic." The original quote has been misconstrued in popular culture, with the word "falsely" often omitted, and the outcome of "panic" not explicitly mentioned. The quote has been used to argue that speech deemed false or harmful is not protected by the First Amendment. However, it is important to note that the comment by Holmes was a descriptive image in his ruling and did not establish a legal test or precedent.
The Schenck case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that directed at and likely to incite imminent lawless action. The Supreme Court now uses a more specific test to limit potentially dangerous speech, requiring that the speech must incite imminent lawless action to be limited. The utterance of "fire" in and of itself is not generally illegal within the United States, and whether it is legal to falsely shout "fire" in a theater depends on the circumstances and consequences.
Instances of people falsely yelling "fire" in crowded theaters and other venues have resulted in mass panics and deadly consequences. From the 1870s to 1919, nearly 30 such incidents occurred across the United States, resulting in over 150 deaths. In 1913, an unknown individual intentionally shouted "fire" at a crowded union Christmas party in Michigan, causing a panic that led to the deaths of 73 people, mostly children. This incident was memorialized in Woody Guthrie's 1945 song "1913 Massacre."
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The First Amendment does not protect false yelling of fire
Yelling "fire" in a crowded theater has become a metaphor for speech that is so dangerous that it is not protected by the First Amendment. However, this is a misinterpretation of a comment made by Justice Holmes in the 1919 Schenck v. United States case. The original quote was: "The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre and causing a panic." This was a descriptive image used in his ruling and did not establish any sort of test or precedent.
The First Amendment does not protect the right to falsely yell "fire" in a crowded theater to cause a panic. If someone is injured, you could be held liable. However, the First Amendment does protect your right to yell "fire" if there is truly a fire, or you believe there is one, and you are trying to warn people of danger.
The utterance of "fire" in and of itself is not generally illegal within the United States. Whether it is legal to falsely shout "fire" in a theater depends on the circumstances and the consequences of doing so. For example, in Ohio, it is illegal under ORC 2917.31, where it is called "inducing panic". The determination of whether speech is protected or not requires knowing more about the context, including the intent of the speaker and the actual or likely results. Simply yelling "fire" in a theater is not automatically unprotected speech.
The Schenck case, which involved a socialist activist being charged with violations of the Espionage Act for speaking out against the draft, has been misinterpreted as a justification for limiting free speech. In fact, it stood for the opposite, and was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which incites imminent lawless action.
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Shouting fire could cause panic and be deemed disorderly conduct
Shouting "fire" in a crowded theatre has become a common metaphor for dangerous, unprotected speech. However, the legality of doing so is dependent on the circumstances and the speaker's intent. The First Amendment does not protect the right to yell "fire" in a crowded theatre falsely and with the intention of causing panic. In such cases, individuals could be charged with disorderly conduct or inducing panic, and be held liable for any injuries sustained.
The phrase originates from a 1919 Supreme Court case, Schenck v. United States, in which Justice Oliver Wendell Holmes Jr. stated that the "most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre and causing a panic." This case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which incites imminent lawless action.
Despite the partial overturning of the Schenck case, the phrase has endured as a symbol of speech that, due to its potential to provoke violence, is not protected by the First Amendment. However, it is important to note that simply yelling "fire" in a theatre is not automatically considered unprotected speech. The determination of whether the action is protected or not requires considering the context, including the speaker's intent and the actual or likely results of their speech.
In conclusion, shouting "fire" in a crowded theatre can cause panic and be deemed disorderly conduct or inducing panic, depending on the circumstances. However, it is not inherently illegal to utter the word "fire" in a crowded theatre, and the First Amendment protects the right to do so if there is a fire or if one believes there is a fire and is attempting to warn others.
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The Schenck case and Justice Holmes' analogy
The Schenck case, or Schenck v. United States, was a landmark decision of the U.S. Supreme Court in 1919 concerning the enforcement of the Espionage Act of 1917 during World War I. The case involved Charles Schenck and other defendants who distributed flyers to draft-age men urging resistance to induction, in violation of the Espionage Act. The defendants argued that their conviction and the statute that authorized it were contrary to the First Amendment.
Justice Oliver Wendell Holmes Jr., writing for a unanimous court, ruled that the First Amendment did not protect Schenck from prosecution, even though "in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights." Holmes introduced the analogy of yelling "fire" in a crowded theatre to explain his reasoning. He wrote:
> "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic..."
Holmes argued that Schenck's actions presented a clear and present danger to the government's recruitment efforts for the war and thus fell outside the protection of the First Amendment. This analogy has become a well-known phrase and is often used to argue that certain types of speech that present a danger or cause harm are not protected by the First Amendment.
It is important to note that Holmes's analogy was not a binding statement and did not establish a legal test or precedent. The actual quote also included the word falsely, which is often omitted in popular culture, changing the original meaning. Additionally, the Schenck case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that directed to and likely to incite imminent lawless action.
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The Supreme Court's test for limiting potentially dangerous speech
The Supreme Court has, over the years, used various tests to limit potentially dangerous speech. In the early 20th century, the Court established the clear and present danger test as the predominant standard for determining when speech is protected by the First Amendment. This test was crafted in cases involving seditious libels, i.e., criticisms of the government, its officials, or its policies. According to this test, if words are of such a nature as to create a clear and present danger that they will bring about substantive evils that the government has a right to prevent, then they are not protected by any constitutional right.
However, in the case of Schenck v. United States (1919), Justice Oliver Wendell Holmes Jr. used a paraphrased dictum in his opinion, stating that "The most stringent protection of free speech would not protect a man in falsely shouting 'fire' in a theatre and causing a panic." This paraphrased version of his statement is often misquoted as "you can't yell 'fire' in a crowded theater," omitting the key word "falsely" and losing the original quote's indication of the speaker's intent and context.
In the case of Gitlow v. New York (1925), the Supreme Court observed that freedom of speech and the press do not protect publications or teachings that tend to subvert or imperil the government or hinder it in the performance of its duties. This is known as the bad tendency test, which is different from the clear and present danger test as it proposes no distinction based on circumstances and only protects innocuous speech.
In Brandenburg v. Ohio (1969), the Supreme Court unanimously reversed the conviction of a Ku Klux Klan group for "advocating violence as a means of accomplishing political reform" because their statements did not express an immediate or imminent intent to carry out violence. This decision narrowed the test to an "imminent lawless action" standard, which holds that speech must incite imminent lawless action to be limited or punished. This is the current test used by the Supreme Court to limit potentially dangerous speech.
To summarise, while the Supreme Court has used various tests over time, the clear and present danger test, the bad tendency test, and the imminent lawless action test are key in determining when potentially dangerous speech can be limited or punished. The Court considers the speaker's intent, the actual impact of the speech, and whether it falls into a category of speech that is unprotected.
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Frequently asked questions
Yelling "fire" in a crowded theater is not necessarily illegal, but it could be, depending on the circumstances. The First Amendment does protect your right to yell "fire" if there truly is a fire, or you believe there is one, and you are trying to warn others.
The phrase was first used by Justice Oliver Wendell Holmes in 1919 in relation to a case about the Espionage Act. The case involved socialist activists Charles Schenck and Elizabeth Baer, who were opposed to US participation in World War I and had sent out leaflets encouraging men to peacefully disobey the draft.
Justice Holmes used the phrase as an analogy to introduce a truism: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." He argued that the prosecution of Schenck and Baer was similar to this scenario.
The phrase is still commonly cited today, often in relation to the First Amendment and free speech debates. However, it is important to note that it is not a legal precedent and has been misunderstood over the years. The Supreme Court now uses a more specific test to limit potentially dangerous speech.
