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The most pernicious misunderstanding in First Amendment law raised its ugly head again in last night’s vice-presidential debate between Ohio Sen. J.D. Vance and Minnesota Gov. Tim Walz. In a discussion about the riot at the U.S. Capitol on Jan. 6, 2021, Walz told Vance: “You can’t yell fire in a crowded theater. That’s the test, that’s the Supreme Court test.”

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Oof.

Walz’s belief that “you can’t yell fire in a crowded theater” is the Supreme Court’s test for unprotected speech is both widely held and dead wrong. The phrase comes from Justice Oliver Wendell Holmes’ 1919 opinion in Schenck v. United States, and it’s a testament to the power of a well-turned phrase that we’re still hearing it more than a hundred years later. 

Stop to think about it for a moment. Can it possibly be true that you can’t shout fire in a crowded theater? 

What if there is a fire, or you really think there is one? Do you need to keep quiet about it? Must you remain silent as you race to find and pull the fire alarm? Of course not. That would be absurd.

The premise that “you can’t shout fire in a crowded theater” leaves out some crucial details, which is precisely why that’s not what Justice Holmes wrote. What he did write was this: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Notice the two qualifications in Holmes’ simple phrase. The shout of “fire” has to be false. If there were a fire, or you had good reason to believe there was one, the prohibition does not apply. 

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Nor can you be punished if you falsely shout fire in a theater, but there is no panic. That means people whose alerts simply cause no panic are safe from prosecution. And for thoroughness’ sake, also note that Holmes’ phrase doesn’t touch on whether the theater is crowded — you wouldn’t get a free pass to falsely panic a theater if it’s only half full.

So what exactly did Schenck do to deserve a unanimous Supreme Court decision against him? 

He wrote and distributed a pamphlet urging Americans to peacefully resist being drafted to fight in World War I. That’s it. That’s all he did. The true insidiousness of the “fire in a crowded theater” phrase is the way that, from the very beginning, it has been wielded to justify censorship of a broad range of speech that has nothing to do with fires or theaters.

Schenck was the secretary of the Socialist Party of America, which was opposed to World War I and the draft. So in 1917, the party decided to mail and distribute 15,000 pamphlets to potential draftees.  were headed “LONG LIVE THE CONSTITUTION OF THE UNITED STATES / Wake Up, America! Your Liberties Are in Danger!” and “ASSERT YOUR RIGHTS!” 

The pamphlet also quoted the 13th Amendment, which abolished slavery, and labeled the draft a form of involuntary servitude. It made claims such as, “In a democratic country each man must have the right to say whether he is willing to join the army.” It also said that “conscription laws belong to a bygone age,” and urged recipients to “Write to your congressman and tell him you want the law repealed.” 

“Do not submit to intimidation,” the pamphlet added. “You have a right to appeal to any law.”

Let’s hope that the exposure provided by this high-profile misuse of the phrase will remind those on both sides of the aisle that this is one metaphorical fire that needs to be put out for good.

For this, Schenck was convicted of three counts of violating the Espionage Act of 1917 and served six months in jail. In the face of the “war to end all wars,” the Supreme Court was unanimous: writing to your congressman and asking them to repeal the draft law was the same as falsely shouting fire in a theater and causing a panic. His words were declared, in another phrase that would cause many more problems than it solved, a “clear and present danger.”

Immediately following World War I, Schenck evidently seemed justified, but it seems nuts to us now because it is nuts. This realization began to dawn on Justice Holmes rather quickly. Just a few months later, in his dissent in Abrams v. United States, another case about anti-war pamphlets decided the very same year, he wrote that: 

[A]s against dangers peculiar to war, as against others, the principle of the right to free speech is always the same. It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country. 

And in the landmark free speech cases from World War II (for instance, about mandatory flag salutes) and the Red Scare (for example, forcing a Marxist professor to defend his classes and associations in court), the Court made it clear that it would not be punishing pamphleteers again any time soon.

Finally, in the 1969 case Brandenburg v. Ohio, in which a KKK leader was convicted for promising “revengeance” against the government in a speech before a small crowd of media and Klan members, the Supreme Court pulled the plug on Schenck. Discarding its “clear and present danger” test, the court replaced it with a new test for unlawful incitement: to be punishable, speech must be “directed to inciting or producing imminent lawless action” and be “likely to incite or produce such action.” Schenck’s “dangerous” exhortation to write your congressman — a perfectly legal and democratic activity — would never qualify.

That was 55 years ago. So the “fire in a crowded theater” analogy has been bad law for longer than it was good law. But its liberty-destroying legacy remains, with even those at the highest level of government mistaking a vivid analogy from more than a century ago for the highest law of the land. 

Let’s hope that the exposure provided by this high-profile misuse of the phrase will remind those on both sides of the aisle that this is one metaphorical fire that needs to be put out for good.