Shouting fire in a crowded theater

"Shouting ''fire'' in a crowded theater" is a popular analogy for speech or actions whose principal purpose is to create panic, and in particular for speech or actions which may for that reason be thought to be outside the scope of free speech protections. The phrase is a paraphrasing of a dictum, or non-binding statement, from Justice Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case ''Schenck v. United States'' in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution. The case was later partially overturned by '' Brandenburg v. Ohio'' in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).

The paraphrasing differs from Holmes's original wording in that it typically does not include the word ''falsely'', while also adding the word "crowded" to describe the theatre.

The ''Schenck'' case

Decision

Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917 (amended by the Sedition Act of 1918) to distribute flyers opposing the draft during World War I. Holmes argued that this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:

Legacy

The First Amendment holding in ''Schenck'' was later partially overturned by '' Brandenburg v. Ohio'' in 1969, in which the Supreme Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action [''e.g.'', a riot] and is likely to incite or produce such action." The test in ''Brandenburg'' is the current Supreme Court jurisprudence on the ability of government to punish speech after it occurs. Despite ''Schenck'' being limited, the phrase "shouting ''fire'' in a crowded theater" has become synonymous with speech that, because of its danger of provoking violence, is not protected by the First Amendment.

Ultimately, whether it is legal in the United States to falsely shout fire in a theater depends on the circumstances in which it is done and the consequences of doing it. The act of shouting fire when there are no reasonable grounds for believing one exists is not in itself a crime, and nor would it be rendered a crime merely by having been carried out inside a theatre, crowded or otherwise. However, if it causes a stampede and someone is killed as a result, then the act could amount to a crime, such as involuntary manslaughter, assuming the other elements of that crime are made out. Similarly, state laws such a
Colorado Revised Statute § 18-8-111
classify knowingly "false reporting of an emergency," including false alarms of fire, as a misdemeanour if the occupants of the building are caused to be evacuated or displaced, and a felony if the emergency response results in the serious bodily injury or death of another person
Somewhat more trivially, in some states it is a crime just to knowingly make a false report - or knowingly cause a false report to be made - of an emergency to emergency services. In the statute
just cited, for example, it is a crime to knowingly cause "a false alarm of fire" to be transmitted to "any...government agency which deals with emergencies involving danger to life or property." This crime could plausibly be made out where, for instance, in response to the false shout, an innocent bystander calls emergency services to report the fire, and this is found to have been such a foreseeable response to the shouts that the shouter is deemed to have caused the false report to be made.

Criticism

Christopher M. Finan, Executive Director of the National Coalition Against Censorship, writes that Justice Holmes began to doubt his decision due to criticism received from free-speech activists. He also met the legal scholar Zechariah Chafee and discussed his ''Harvard Law Review'' article "Freedom of Speech in War Times". According to Finan, Holmes's change of heart influenced his decision to join the minority and dissent in the '' Abrams v. United States'' case. Abrams was deported for issuing flyers saying the US should not intervene in the Russian Revolution. Holmes and Brandeis said that "a silly leaflet by an unknown man" should not be considered illegal. Chafee argued in ''Free Speech in the United States'' that a better analogy in ''Schenck'' might be a man who stands in a theatre and warns the audience that there are not enough fire exits.

In his introductory remarks to a 2006 debate in defense of free speech, writer Christopher Hitchens parodied the Holmes judgment by opening "FIRE! Fire, fire... fire. Now you've heard it", before condemning the famous analogy as "the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes." Hitchens argued that the "Yiddish speaking socialists" protesting America's entry into World War I, who were imprisoned by the Court's decision, "were the real fire fighters, were the ones shouting fire when there really a fire, in a very crowded theatre indeed. And who is to decide?"

Writer Emma Camp has pointed out that ''Schenk v. United States'' did not actually address the question of whether or not it is illegal to "shout fire in a crowded theater", since this analogy was simply non-binding dictum used to illustrate Justice Holmes' point.

Historical instances

People have falsely shouted "Fire!" or been misheard in crowded public venues and caused panics on several occasions, such as:
*At Mount Morris Theater, Harlem, New York City in September 1884. During the fire scene of 'Storm Beaten', someone in the gallery shouted "Fire!" three times. The performance continued and a Roundsman and a Policeman arrested a young man.
*In the Shiloh Baptist Church stampede, Birmingham, Alabama on September 19, 1902. Over 100 people died when someone in the choir yelled, "There's a fight!". "Fight" was misheard as "fire" in a crowded church of approximately 3000 people, causing a panic and stampede.
*In the Italian Hall disaster, Calumet, Michigan on December 24, 1913. Seventy-three men, women, and children, mostly striking mine workers and their families, were crushed to death in a stampede when someone falsely shouted "Fire!" at a crowded Christmas party.
*In the Basilica of St. Teresa, Caracas, Venezuela on 9 Apr 1952. 50 people were trampled to death after someone shouted "Fire!". 40 people were arrested in connection with the crush.Stampede In Church Planned?
''13 April 1952''
*At Raymond Cinema 3, Mandaluyong, Metro Manila on December 26, 1987. One 13-year-old girl died from internal haemorrhage while many moviegoers, mostly women, were injured due to a stampede that began when a man shouted "Sunog!" () three times at the packed theater during an evening screening of the Metro Manila Film Festival entry '' Huwag Mong Buhayin ang Bangkay''.

In contrast, during the Brooklyn Theatre fire of December 5, 1876, theatre staff were reluctant to cause a panic by shouting fire and instead pretended that the fire was part of the performance. This delayed the evacuation, leading to a death toll of at least 278.

See also

*Bomb threat
*Food fight
*Clear and present danger
*False alarm
*Imminent lawless action
*Hate speech
*List of United States Supreme Court cases, volume 395
*The Boy Who Cried Wolf
*Threatening the president of the United States
*'' Masses Publishing Co. v. Patten'' (1917)
*''Schenck v. United States''
*'' Abrams v. United States'',
*'' Whitney v. California'',
*'' Chaplinsky v. New Hampshire'',
*''Korematsu v. United States''
*''Terminiello v. Chicago'',
*'' Feiner v. New York'',
*'' Dennis v. United States''
*''Sacher v. United States''
*'' Brandenburg v. Ohio''
*''Hess v. Indiana''

References

Further reading

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*
Review
* Larson, Carlton F.W.
"Shouting 'Fire' in a Theater": The Life and Times of Constitutional Law's Most Enduring Analogy, ''William & Mary Bill of Rights Journal'' (October 2015), vol. 24, pp. 181–212.
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{{DEFAULTSORT:Shouting Fire In A Crowded Theater
First Amendment to the United States Constitution
1919 works
American English idioms
Analogy
Speech crimes