Fire in a crowded theater
From iGeek
"Fire in a crowded theater" construct was used to imprison a war protest, for opposing WWI.
~ Aristotle Sabouni
Created: 2019-04-04 |
- Yelling "Fire in a crowded theater" was a construct invented by Justice Oliver Wendell Holmes, Jr. in 1919, to uphold the illegal persecution of an immigrant who was passing out anti-WWI fliers, under an illegal Espionage Act, in Schenck v. United States. It was never the standard before Schenck, and nor original intent, and virtually never applied again.
- Many parrot the line, without being taught or understanding what it was or that it was invented by a racist progressive to abuse minority immigrants for opposing a war.
- Then Holmes reversed himself (as did the court) in virtually every following case that came up about free speech, the expressions of honest opinion were entitled to near absolute protection under the 1A. (So you can yell fire, if you believe there is one). The only application was if you were intentionally causing criminal mischeif with the intent of harm (and the idea of harm was completely predictible). In the 1920s, a stampede over a theater fire would have likely resulted in harm. Today, the expectation is that most people would casually walk to the exits, if you could motivate them out of their seats.
Even Alito gets it wrong at times.
Repeating the line for Heritage, without providing context/clarity of Brandenburg v. Ohio, that one would expect from a Supreme Court Justice.
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Cases[edit | edit source]
- Wikipedia: Schenck v. United_States (1919) Unanimous ruling lead by progressive Justice Oliver Wendell Holmes Jr., concluded that defendants who distributed flyers urging resistance to the draft was a criminal offense, since avoiding the draft was criminal as well. (The Espionage Act of 1917 was upheld during World War I). And in that opinion used the Fire in a crowded theater example to create the "clear and present danger", that laws could try to prevent.
- Wikipedia: Abrams v. United States (1919) Upheld that freedom of speech was near absolute... the defendant's pamphlet called for a cessation of weapons production did not prove intent "to cripple or hinder the United States in the prosecution of the war" against Germany.
- Wikipedia: Whitney v. California (1927) Upheld the conviction of an individual who had engaged in speech that was a threat to society. Holmes concurred, but he and Brandeis wrote an opinion that defended 1A/Free speech against encroachment, even while making an exception under clear-and-present-danger standard.
- Wikipedia: Dennis_v._United_States (1951) The Court ruled that Dennis (Eugene Dennis, General Secretary of the Communist Party USA) did not have the right under the 1A to exercise free speech, publication and assembly, if the exercise involved the creation of a plot to overthrow the government.
- Wikipedia: v. Ohio Brandenburg v. Ohio (1969) Got unanimous Court support to reverse the conviction of a Ku Klux Klan member prosecuted for giving an inflammatory speech. Which repudiated the clear-and-present-danger standard of Dennis, and it basically reversed Schenk, and setting the bar much higher to posing a danger of "imminent lawless action".
🔗 More
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🔗 Links
- Reason: Yes, You Can Yell 'Fire' in a Crowded Theater.
- The Atlantic: It's time to stop using the 'Fire in a Crowded Theater' Quote
Tags: 1A
