Free Speech Pro-Tip: You Can Yell Fire In A Crowded Theatre

from the new-gear-from-techdirt dept

Tue, Aug 14th 2018 10:43am — Leigh Beadon

New gear from Techdirt, now available on Teespring »

No discussion about free speech gets very far without someone busting out the idea that "you can't yell fire in a crowded theatre". It's a phrase that's irritated actual free speech experts for years: it adds nothing to the discussion, and it's not even true — there are plenty of times when you can (not the least of which being if the theatre is actually on fire!) Moreover, the phrase itself is a relic of an old, awful, and overturned Supreme Court ruling that put someone in jail for criticizing the mandatory military draft in the First World War. The inimitable Ken White dug into the phrase's uselessness and horrible legacy in a 2012 Popehat post and, more recently, an episode of the Make No Law podcast.

And now you can help fight back against this dangerous idea with new gear from Techdirt! The Free Speech Pro-Tip is available on t-shirts, hoodies, mugs and stickers from Teespring.

Order yours today, and be sure to check out our storefront for other great Techdirt gear!

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 1st amendment, fire in a crowded theater, free speech

29 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

This comment has been flagged by the community. Click here to show it

Dan J., 14 Aug 2018 @ 11:11am

" It's a phrase that's irritated actual free speech experts for years..." Then those so called experts need to get a friggin' clue. Yes, you can shout "Fire!" in a theatre if the place is actually on fire or if you're in a play, etc. You can shoot someone if they're trying to shoot you first. Hell, you can even drop an atomic bomb on a city if you're in a war and have been legally ordered to do so. Outside of physics, nothing is absolute. The phrase clearly refers to causing a panic by falsely convincing people their lives are in danger when they are in fact not in danger. If you object to that, your pedantic ass needs to get a life.
[ link to this | view in chronology ]
- Leigh Beadon (profile), 14 Aug 2018 @ 11:21am
  
  Re:
  You should consider reading the Popehat post discussing the phrase in more detail.
  
  The point is that even if it's taken at its most limited meaning which you describe, it still **adds nothing** to a debate about free speech. It **says nothing** about limitations on *other* forms of speech. And invoking it to support calls for other limitations on speech is sloppy and dangerous - as evidenced by its original usage, which was to put someone in jail for distributing pamphlets that opposed the mandatory military draft. Yes, that's the original "yelling fire" - writing a pamphlet that criticizes the government.
  [ link to this | view in chronology ]
  - Wnt, 17 Aug 2018 @ 1:24pm
    
    Re: Re:
    I was going to tell them this, but you beat me to it. That bogus metaphor was their excuse for taking a PRESIDENTIAL CANDIDATE (Eugene Debs) and throwing him in jail for HIS POLITICAL BELIEFS. In order to make the world safe for the ultra rich to have poor people of all nationalities rounded up and sent to die by poison gas while pretending they were at war with each other --- when in fact the only threat to their lives was the rich elite that drafted them!
    
    The big joke is that, even in the early 1900s, people who falsely yelled "Fire!" almost NEVER had legal problems. Why? Because they said they smelled smoke, or they heard someone else yell it first. Law enforcement was *never* effective against this, even with a censorship doctrine to back it up.
    
    The only sane answer was, and is, to provide good exits, good design, a good evacuation plan. And NEVER let people get away trying to excuse censorship without a retort. Censorship and lies are inseparable twins, never found parted one from the other.
    [ link to this | view in chronology ]
    - Anonymous Coward, 31 Aug 2018 @ 3:31am
      
      Re: Re: Re:
      People also cite slander, defamation as first amendment restrictions. In the US the government can not charge those, they are civil remedy where harm must have occurred and where the harm must be proved, and the only sanction that occurs is on the person who caused the proven harm
      [ link to this | view in chronology ]
- Mike Masnick (profile), 14 Aug 2018 @ 11:23am
  
  Re:
  If you object to that, your pedantic ass needs to get a life.
  
  No one is objecting to that. What they're objecting to is the regular use of that phrase to stifle legally protected speech, including in the very case that the line comes from (putting someone in jail for protesting the draft).
  [ link to this | view in chronology ]
  - Anonymous Coward, 14 Aug 2018 @ 11:33am
    
    Re: Re:Draft
    "Protesting" the draft by handing out pamphlets urging changes to the draft laws - which wouldn't even be considered a thing. (If I remember that case correctly?)
    [ link to this | view in chronology ]
  - Anonymous Coward, 31 Aug 2018 @ 3:34am
    
    Re: Re:
    the phrase is often used by gun an/control lobbyists to claim there are similar limits on the first amendment. But these s called limits on the first amendment are against an individual, and only after a harm has been proven, and civil not criminal. There are no "pre-crime" proir restraints.
    [ link to this | view in chronology ]
- Thad (profile), 14 Aug 2018 @ 12:12pm
  
  Re:
  You should read more than two sentences into an article before you comment on it.
  
  I know what you're thinking -- "Read more than two sentences? Who has time for that?" But, my friend, I have some amazing news for you: taking time to read past the second sentence actually saves you time. For example, if you'd read the third and fourth sentence of this article, why, you wouldn't have had to spend any of the time it took you to compose your reply!
  [ link to this | view in chronology ]
- jameshogg (profile), 15 Aug 2018 @ 6:58am
  
  Re:
  "The phrase clearly refers to causing a panic by falsely convincing people their lives are in danger when they are in fact not in danger."
  
  Dumb fire drills. Always putting lives in danger.
  [ link to this | view in chronology ]
This comment has been flagged by the community. Click here to show it

Al Malgamated, In Dustry, Ohio, 14 Aug 2018 @ 11:40am

No. Context is always: FALSE report intended taken for real.
Skip all your legalistic sophistries and show it in reality, kid: set up live video upload from another person, then YOU go into a crowded theater without advance notice and so on, in every way making a FALSE report as if real. -- We'll be able to enjoy you being hauled off to JAIL, likely for your own protection after the crowd beats you up, and even if loosed from criminal charge, the theater owner will have civil cause for lost revenue.

Okay? Then, go to it! You've got a RIGHT, exercise it!

Sheesh. This LONG-RUNNING series based on CHILDISH assertions only shows that are perverse little fiends trying for "look at me!", and truly believe they're a form of royalty above common law.
[ link to this | view in chronology ]
- I.T. Guy, 14 Aug 2018 @ 11:58am
  
  Re: No. Context is always: FALSE report intended taken for real.
  Wilbur... you are such an idiot. No really Bruh, your Id is waaaaay off. Nice way to make a figurative a literal. Not surprised you don't get it.
  
  How's Brandy and the baby? Hopefully your genetics take a back seat to hers.
  [ link to this | view in chronology ]
- hij (profile), 14 Aug 2018 @ 12:01pm
  
  Re: No. Context is always: FALSE report intended taken for real.
  If only the article above had a link to a nuanced and logical explanation of the problems associated with using that quote in contexts that it does not belong. Some historical context as to why it is overused and not helpful would be good to.
  
  You know who should do something like that? That Popehat guy. He is good at that sort of thing. We should ask him nicely....
  [ link to this | view in chronology ]
  - Ninja (profile), 14 Aug 2018 @ 12:44pm
    
    Re: Re: No. Context is always: FALSE report intended taken for real.
    He also needs to define what the heck common law and natural law means because at the very least he won't look like a complete lunatic like he does when he starts swinging these empty words around.
    [ link to this | view in chronology ]
    - Anonymous Anonymous Coward (profile), 14 Aug 2018 @ 12:45pm
      
      Re: Re: Re: No. Context is always: FALSE report intended taken for real.
      He can't. The image is different every time he gets out of bed. I was going to say wake up, but that isn't actually clear.
      [ link to this | view in chronology ]
  - Anonymous Coward, 16 Aug 2018 @ 5:50pm
    
    Re: Re:
    You're not going to get out_of_the_blue to do that. Popehat regularly wrote about and criticized Prenda Law. That puts him in blue boy's ultimate shit list...
    [ link to this | view in chronology ]
- Stephen T. Stone (profile), 14 Aug 2018 @ 12:22pm
  
  Yet here you are, throwing a temper tantrum because a “childish” blog said something with which you disagree, because…maturity, I guess?
  [ link to this | view in chronology ]
- Ninja (profile), 14 Aug 2018 @ 12:41pm
  
  Re: No. Context is always: FALSE report intended taken for real.
  The Government cannot preempt any speech, including yelling "fire!" in a crowded theater but you will face the consequences if you do it.
  
  That's the point you fail miserably to understand when talking about free speech. It's about not letting the government control what speech is allowed and to reach such goal you must not prevent any kind of speech be it hateful or that endangers others.
  [ link to this | view in chronology ]
- Dark Helmet (profile), 14 Aug 2018 @ 12:57pm
  
  Re: No. Context is always: FALSE report intended taken for real.
  Christopher Hitchens literally did this. Famously so. There's even video of it.
  
  You're an idiot.
  [ link to this | view in chronology ]
- Anonymous Coward, 14 Aug 2018 @ 2:47pm
  
  Re: No. Context is always: FALSE report intended taken for real.
  Wow! Who knew every fire department has an intercom wired directly into every movie theatre such that a person yelling in the theatre is making an official report of a fire!
  [ link to this | view in chronology ]
- Bergman (profile), 15 Aug 2018 @ 1:19pm
  
  Re: No. Context is always: FALSE report intended taken for real.
  The problem is that the origin of the quote about shouting fire wasn't a false report.
  
  The guy it was said about was an anti-war protestor distributing pamphlets asking people to vote to change the laws that permitted mandatory military service. That's it.
  
  If it were in fact illegal to do that sort of thing, then it would be impossible to run for any elected office that had an incumbent, because it would be sedition against the existing official.
  [ link to this | view in chronology ]
carlb, 14 Aug 2018 @ 6:36pm

Yes, but may I cry "movie!" in a crowded firehall? (n/t)
[ link to this | view in chronology ]
- John Roddy (profile), 15 Aug 2018 @ 8:23pm
  
  Re: Yes, but may I cry "movie!" in a crowded firehall? (n/t)
  No. That one will get you arrested.
  [ link to this | view in chronology ]
Anonymous Coward, 14 Aug 2018 @ 6:48pm

WOW Guess none of those above will be buying a tee shirt
[ link to this | view in chronology ]
- This comment has been flagged by the community. Click here to show it
  
  Anonymous Coward, 15 Aug 2018 @ 1:10am
  
  Re:
  Why don’t you offer black face masks that say “No USA At All!”. I think they would have a better chance being popular among your small circle of supporters. Maybe give them away for free just to promote your fundamental message, that might attract all 20 like minded people that exist in the US.
  [ link to this | view in chronology ]
  - Anonymous Coward, 15 Aug 2018 @ 10:35pm
    
    Why don’t you get off your lazy stupid broke ass
    And make some easy money off the people you hate?
    
    No?
    Then STFU
    [ link to this | view in chronology ]
Anonymous Coward, 15 Aug 2018 @ 8:04am

Does it also say “I’m a Douche, Kick Me” on the back?
[ link to this | view in chronology ]
- Anonymous Coward, 15 Aug 2018 @ 8:51am
  
  Re:
  My such simple minds
  Those who refuse to learn from the past will
  soon regret having to relive through it all over again .
  Ahh for the good old days of survival of the fittest .
  [ link to this | view in chronology ]
- Anonymous Coward, 15 Aug 2018 @ 10:36pm
  
  Re:
  Nah that’s your moms tramp stamp.
  [ link to this | view in chronology ]
Bergman (profile), 15 Aug 2018 @ 1:21pm

It's worth noting...
That if there actually is a fire, not sounding an alarm is negligent homicide, and stopping someone from sounding an alarm is second degree murder if anyone dies in the ensuing fire.
[ link to this | view in chronology ]