Stop Saying It's Okay To Censor Because 'You Can't Yell Fire In A Crowded Theater'
from the dead-and-buried dept
You hear the phrase all the time, often being used to explain why there are "limitations" on the First Amendment: "You can't yell fire in a crowded theater." It's come up quite a bit recently, in response to both the "Innocence of Muslims" video and the @comfortablysmug guy on Twitter tweeting bogus claims. However, the quote is almost always taken out of context, and all too often used as a crutch to defend blatant censorship that does, in fact, violate the 1st Amendment.Back in September, Ken White wrote a great piece pointing out why the quote is used out of context by those in favor of censorship, and now Trevor Timm is pointing out why it's time for this phrase to be kicked aside. Both articles are absolutely worth reading, and remembering the next time someone uses the "fire in a crowded theater" line.
As the pieces both note, the original quote was said by Supreme Court Justice Oliver Wendell Holmes in a case, Schenck v. United States, but there are a few important facts often left out:
- The case had nothing to do with fires or theaters. The quote was Holmes giving a general statement that has no actual bearing on the case or precedential value in court ("dicta" in the legalgeek speak).
- The case is, to this day, considered one of the more odious and regretful decisions by the Supreme Court, in which they locked up a member of the Socialist Party for distributing incredibly tame pamphlets to give to prospective draftees about their rights during World War I.
- The case was later effectively (though not explicitly) overturned by Brandenburg v. Ohio and the ruling in the case itself is no longer binding caselaw anyway.
- Holmes himself, very soon after this decision, issued another decision that argued quite differently in Abrams v. United States, where he made the much more reasonable and useful argument:
"The ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out."
Holmes' quote is the most famous and pervasive lazy cheat in American dialogue about free speech.It's been misused for far too long, and I agree that it's time it stopped.
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Filed Under: censorship, fire in a crowded theater, first amendment, free speech, history, supreme court
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Thank you
I think it perpetuates because there is a kernel of truth embedded in it (as is the case with the best myths and misnomers).
The kernel of truth is this: it is not permissible to engage in speech that is intended or will clearly result in immediate risk of physical harm to people. The words "immediate" and "physical harm" are important there.
As an interesting aside, there have been at least two sociological studies that show that literally yelling "fire" in a crowded theater does not result in the panic that people envision it does.
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What is your point?
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Confused
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The Howitzer unit in Civ II just before an attack, if I remember correctly.
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Or, if it breaks out in the lobby, the place might be in bad shape before word gets to you without someone shouting it.
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It's not being misused. It stands for the proposition that freedom of speech is not absolute, and laws can indeed limit freedom of speech.
The fact that the "clear and present danger" test put forth by the unanimous Court in Schenck has changed over the years is irrelevant since the FACT REMAINS that you still can't yell fire in a crowded movie theater. Why? Because the freedom of speech is still not absolute.
I know you think that "no law" leaves no wiggle room, but the fact remains that "abridging the freedom of speech" does. A law against yelling fire in a crowded theater doesn't abridge freedom of speech.
Nice try but people using the phrase today are using it correctly, just as Justice Holmes did. All it means that freedom of speech is not absolute. Period.
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Actually, it's a self defense trick that is taught regularly:
From Impoweryou.org:
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Then just say that.
The phrase is typically used as an example of the limits of free speech -- and as such, it fails. It is not such an example.
A better example would be that if you are in front of an irate crowd, you can't yell instructions for them to "kill the bastards".
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Why not? Do you live in a state with a law against yelling fire in theaters? This specific action is likely not going to end in you being imprisoned or fined. As noted above, studies have been done that indicate that doing this will not put anyone in imminent harm. Knowing this would be a pretty good defense - even if someone was actually hurt.
"A law against yelling fire in a crowded theater doesn't abridge freedom of speech"
And yet, no such law actually exists (not in Connecticut, at least). So saying: "you cannot yell fire in a crowded theater" has little support from actual law behind it.
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That totally ruins my plans for Black Friday.
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Historical Example
"Then why wasn't the perpetrator of the Italian Hall disaster ever prosecuted?"
http://en.wikipedia.org/wiki/Italian_Hall_disaster
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Which is not to say I'm in favour of new laws regulating speech on the Internet, mind you; we already have laws against soliciting murder, inciting riots and (in the US) reckless endangerment that have been working just fine for decades.
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Freedom of speech is not absolute, as evidenced by the fact that you can't yell fire in a theater and cause a panic. It's a perfect example of the principal, so I don't get your point.
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Since there is no law specifically saying you cannot yell 'fire' in a theater, doing so it unlikely to result in you being found guilty of a crime.
I challenge you to find the law that yelling 'fire' in a theater breaks. If you do, please post it.
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Legalisms. All we get here are weenie legalisms, purpose of which is to undermine common sense.
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Specifics, please.
I have a local noise ordinance listed, but I don't think I can yell that loud.
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This has nothing to do with a desire to see people who use these phrases get put on a watchlist.
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Christine O'Donnell turned you into Newt Gringrich?
(Sorry... it is election day. :-)
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http://lmgtfy.com/?q=connecticut+public+disturbance&l=1
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I will, however, admit this might mean immediate and very substantial physical harm to fictional (or historical) character(s).
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So no, the "yelling fire in a crowded theater" is bullshit, there is no such law since it would be unconstitutional.
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Thanks!
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("where there's smoke, there's fire, and where there's fire, light it up! ! !")
hee hee hee
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Also screaming fire in a theater can put people in harms ways, but then again it may not when was the last time you saw anybody get harmed by such pranks?
I don't recall any instance of ever happening in my life, I never heard, read or saw something like that and that is not to say that it never happened, but it happens so rarely that laws against it that erode the principal freedom of speech should never be allowed because there is no such a problem that needs a law to fix it and even if that was the case the law should be temporary so it goes away when it is no longer needed.
Unless of course you don't believe freedom of speech is important and can be taken away.
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Are you claiming that it is illegal to intentionally cause a panic over something you know not to be true?
I can think of a few things that would cover. Panic of terrorists carrying more than 3 ounces of liquid onto planes. Panic over job losses due to copyright infringement. Panic over cyber-bullying/attacks/crime/anything.
Any of those sound familiar?
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Things I did today:
2. See comments from Anon#18
3. the_fuck_am_i_reading.jpg
4. Ask where the hell humanity went wrong
5. ACHIEVEMENT UNLOCKED: "I Don't Want To Live On This Planet Anymore"
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Will you not admit that it is widely used in situations where someone seeks to increase limitations on the 1st Amendment where they currently don't exist? Thus, it is, in fact, regularly misused as a tool to try to increase censorship.
That you would defend such policies is, well, not surprising, but symptomatic of the problem being discussed.
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They started the fire!
Unless of course, that person that yells Fire set the fire in the first place, to clear the place out.
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That you would defend such policies is, well, not surprising, but symptomatic of the problem being discussed.
Point me to a situation where that's happening and I'll take a look. I'm not aware of anyone arguing that censorship (actual censorship, as the First Amendment was ratified to defend against, not the ridiculously over broad version you subscribe to) is OK because some other speech restrictions (like against yelling fire in a theater) are constitutional. I honestly don't know what you mean, and it sounds like straw man FUD to me.
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Many (all?) constitutional rights can be exercised in a way that impinges on other constitutional rights. When this happens, the law is the mechanism by which we as a society decide how to balance the two. In the course of balancing them, one or the other (often both) rights become limited in scope.
This is inevitable. No constitutional right trumps another, and so no constitutional right is absolute.
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The Hell You Say
And, if found guilty of careless or intentful malicious harm after the fact, held responsible for the consequences.
Such is Freedom.
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Or you could just, y'know, look at the stories that the article linked to.
There are several examples of the "Heckler's Veto:"
- Does 'Innocence of Muslims' meet the free-speech test?
- Christiane Amanpour Implies 'Extremists In This Country' Inspired Murderous Riots In N. Africa
- Justice Stephen Breyer: Is Burning Koran 'Shouting Fire In A Crowded Theater?'
...or of charging speakers with "dangerous" speech because they're "smug:"
- Councilman Pushes For Charges Against Twitter User Who Spread Falsehoods
...or of overturning the Pentagon Papers case:
- Dianne Feinstein: Prosecute Assange Under the Espionage Act
These are flat-out arguments for censorship.
Those are just the ones linked in the articles above. If you Google, you can find plenty of people who use that phrase to support censorship. In fact, if you look at any argument for censorship in America, and I'll bet that the person who argued for it has used that phrase as justification.
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lets look at the elements of the "infraction" shall we
Firstly you need INTENT.. you know the mens rae of actually specifically meaning to cause something to occur.
secondly your action(s) need to cause: inconvenience OR annoyance OR alarm OR recklessly creating a risk, in some person
thirdly we come to the specificity of what the actual intentional action must of been done via
(1) engages in fighting or in violent, tumultuous or threatening behavior; or
(2) annoys or interferes with another person by offensive conduct; or
(3) makes unreasonable noise.
So we need to have intent + inconvenience (or other highly subjective effects) + a choice of 3 specific scenarios before any infraction can be chargeable.
Sadly yelling fire in a theatre might fall under "unreasonable noise" but the intent of the person to utter that "noise" would not be to cause any of the subjective elemental effects but instead to give information to make people aware of imminent danger.
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1. That statute has NOTHING to do with abridging speech or of disallowing anyone to yell fire in a crowded theatre (or anywhere else for that matter)
2. You have no idea what you are talking about, just that you think you do.
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Bwahahahahahahahaha hahahahaha hahahahah ahhahahaha
No really... you are talking about undermining Common Sense
Bwahahahahahahaha
+1zillion Internet funny points to you
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Well, that's not exactly surprising, since you seem to have no love for the First Amendment.
Those are uses of the phrase to point out that free speech isn't absolute.
No, they are not arguing that free speech isn't absolute. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as shouting 'Fire', so doesn't deserve to be called free speech at all."
The arguments are that government intervention on the human rights of free speech are justified, solely because that right interferes with "Situation X." Situation X being something that is chosen to push emotional buttons.
It is nothing other than an argument for censorship. It is presenting the case that censoring that speech is lawful censorship, thus "OK." (And, of course, nobody ever would believe that "this case" applies to other cases, which we hard-blooded censorship-loving Americans choose to support).
Also, if they were merely pointing out that free speech is not "absolute," there would be no controversy. That is not the argument that any of the quoted people are making. It is a straw man.
Quite obviously, those who bring this up, are almost certainly arguing for government censorship. Hopefully those people will at least learn to tell the truth.
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Well, that's not exactly surprising, since you seem to have no love for the First Amendment.
Those are uses of the phrase to point out that free speech isn't absolute.
No, they are not. They are saying, "Free speech doesn't apply to screaming 'Fire.' Speech X is exactly the same as screaming 'Fire,' so doesn't deserve to be protected by the First Amendment."
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I have plenty of love for it, and I've been studying it formally. Unlike you, I know that when it was ratified, it covered only speech. It wasn't until later that it was expanded to cover expressive conduct. And unlike you, I don't go around calling everything "censorship," expanding the meaning so much that it covers just about everything.
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“Symbolic Expression and the Original Meaning of the First Amendment” by Eugene Volokh, Georgetown Law Journal
(Footnotes omitted)
The 1839 case is Brandreth v. Lance, 8 Paige Ch. 24 (N.Y. Ch. 1839).
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For example, the Supreme Court at first even said motion pictures were not protected by the First Amendment: Mutual Film Corp. v. Indus. Comm'n of Ohio, 236 U.S. 230, 244 (1915).
Of course, at that time, the Court did not think that the federal First Amendment even applied to the states. Thereafter, the Court greatly expanded the scope of the First Amendment, finding it was incorporated against the states under 14th Amendment Due Process.
37 years after Mutual Film, the Court changed its mind about motion pictures, finding them now protected by the First Amendment: Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952).
Things are greatly different now than they were back then.
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> leaves no wiggle room,
Not just us, the Founders thought that as well. Little did they know that no matter how specific and simple to understand they made it, there'd be people like you who would find a way to make 'no law' mean something other than 'no law'.
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> intent element. Most criminal
> statutes do. What's your point?
The point is that speech can't be outlawed merely because it might disturb or annoy people.
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> was ratified, it covered only speech.
> It wasn't until later that it was
> expanded to cover expressive conduct.
> And unlike you, I don't go around
> calling everything "censorship,"
> expanding the meaning so much that
> it covers just about everything.
So now suddenly you're Mr. Strict Constructionist when it suits you, yet earlier you were arguing that there's wiggle room for interpreting 'no law'.
Amazing.
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So now suddenly you're Mr. Strict Constructionist when it suits you, yet earlier you were arguing that there's wiggle room for interpreting 'no law'.
Amazing.
Wrong on so many levels, as per usual. My point was it's true that no law can abridge freedom of speech, but what that means turns on how you define abridge and freedom of speech. If someone argues "It says 'no law,'" the response is, "Yeah, so?" That's a descriptive comment, since I'm describing the actual law. Same goes for my comment about the scope of the First Amendment rights expanding over time. I'm describing a historical fact, not offering an argument as to which interpretative model is best for constitutional construction. Amazing that a lawyer like you doesn't pick up on this stuff.
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And the "yell fire" example exemplifies that, since there's more to it than simply annoying people. Again, what's your point?
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And my point, which you never seem to catch, brilliant attorney that you are, was that while some might argue that the First Amendment is absolute because it says "no law," that doesn't mean that there's not lots of wiggle room in the Amendment. That wiggle room has been used to expand its meaning. Heck, it says it only applies to "Congress," ("Congress shall make no law") but today the Court says that the 14th Amendment Due Process Clause means that it applies to the states as well. Why? Because they said so.
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Yeah, I thought we'd had this conversation before...
You've been studying speech issues formally, I get that. I've been interested in speech issues for over twenty years - since the anti-pornography debates in the mid-80's, if not earlier, and I've been reading free speech case law all that time. I have a personal stake in free speech issues, as I produce art that is unpopular, as do other artists that I like.
So, I know what I'm talking about, and you're wrong, as you were in our previous discussion. The First Amendment was created specifically to disallow the government censorship of any viewpoint, no matter how it was expressed. There was no distinction made between speech and "expressive conduct," then or now. It's true that the First Amendment has been applied in situations that the Founders didn't consider; but they did not consider that the government would ever attempt to suppress speech in those situations, either. And expression was seen by the Founders as a natural (inalienable) right; something that no just government had a right to interfere with.
Oliver Wendell Holmes was explicitly disavowing the "natural rights" view of free speech when he decided Schenck. This is not a surprise, as he didn't believe in natural rights at all:
If the middle paragraph reminds you of the "2 + 2 = 5" speech from Orwell's 1984, you're not alone. Holmes did not believe in human rights at all; he believed that people's "rights" emanated from ideas that survived as the "fittest" to society. Note that Holmes also sanctioned forced sterilization, in Buck v. Bell:
It may seem like a cheap shot to bring it up, but it is an example of Holmes' belief that the "public welfare" should trump human rights. And it is also an example of the consequences of this belief.
Thus Holmes, and the court in Schenck, contracted First Amendment protections; and, in fact, they had already been shrinking for quite some time before that (especially, and unsurprisingly, during the Civil War). It wasn't until the court returned to an "inalienable right" view of free speech that First Amendment jurisprudence started returning to what the Founders originally intended. And today, the Schenck case (along with Debs and Frohwerk) are considered shameful, part of the dark ages in the history of free speech, and fortunately long-overridden.
When people use the "fire in a crowded theater" quote, they are essentially arguing for a return to these dark ages, whether they are aware of it or not (and usually they are not).
And unlike you, I don't go around calling everything "censorship," expanding the meaning so much that it covers just about everything.
My definition of "censorship" is pretty much the same as the law's: the government suppression of expression.
I will admit that I have more of an absolutist view of the First Amendment than some other people - that any government regulation of speech is wrong, and that such regulations must protect human rights that are equally as fundamental. But this is a "bias" that I'm not even remotely ashamed of, and I think everyone should have it.
Some censorship may necessary, and may not run afoul of the First Amendment. But that doesn't mean it's not censorship, just that it's not unconstitutional censorship.
And that is - without question - what the people I quoted are arguing. They are arguing for censorhip, by arguing that it's not unconstitutional censorship. Which is pretty much the same argument that all people make when they want to censor something. And they usually quote Holmes when they do it.
I'm willing to bet you've made such an argument yourself...
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You might have the right to say whatever you want but not without consequences:
http://www.azcentral.com/community/scottsdale/articles/20111216scottsdale-doctors-w in-lawsuit.html
Summary:
- Scottsdale doctors awarded $12 million in defamation case
- Singer had defamed Scottsdale plastic surgeon on website
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privacy
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RCW 9A.84.030
Disorderly conduct.
(1) A person is guilty of disorderly conduct if the person:
(a) Uses abusive language and thereby intentionally creates a risk of assault;
(b) Intentionally disrupts any lawful assembly or meeting of persons without lawful authority;
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Those are the ones on the jury who will convict you. Try not to drop the soap when the other prisoners decide to exercise their "First Amendment" rights on your pretty pink derriere!
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Is this a site for trolls, or a site made by trolls?
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Well, Arthur this site attracts an interesting subset of Troll -- Lawyer.
Site's purpose is to inform everyone about issues -- law and courts, Capital Hill are the tip of the iceberg of articles that help not-a-lawyer-and-those-who-watch-lawandorder understand the crazy that exists behind the pretty talking heads. Try search: T-mobile, try random senator name, try privacy, try Amazon ... endless fun until U try Internet.
So yes your statement is true for the subset troll lawyer. /I don't have a humor gene.
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