“You can\u2019t yell fire in a crowded theater. I\u2019m sure you\u2019ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it\u2019s actually one of the most widely misunderstood quotes in American law. It\u2019s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.”<\/p>\n\n\n\n
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“the interesting about it is the Schenck case wasn\u2019t about fires, it wasn\u2019t about theaters, it kind of wasn\u2019t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it\u2019s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That\u2019s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.<\/p>\n\n\n\n
So, the idea that you can\u2019t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can\u2019t go completely unchecked. And that idea has maintained it\u2019s truth throughout the years. That\u2019s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that\u2019s a topic for a different video. But it\u2019s just always been interesting to me that this quote, which is just dicta, it\u2019s not the holding of the case, it\u2019s not really the law of the land, and it\u2019s not Justice Holmes saying that\u2019s what the law of the land should be, has somehow withstood the test of time and is still, to this day”<\/p>\n\n\n\n