{"id":9446,"date":"2022-12-03T15:53:07","date_gmt":"2022-12-03T15:53:07","guid":{"rendered":"http:\/\/lonecandle.com\/?p=9446"},"modified":"2022-12-03T15:53:07","modified_gmt":"2022-12-03T15:53:07","slug":"yes-you-can-yell-fire-in-a-crowded-theater","status":"publish","type":"post","link":"https:\/\/lonecandle.com\/?p=9446","title":{"rendered":"Yes, You Can Yell ‘Fire’ in a Crowded Theater"},"content":{"rendered":"\n

\n\n“The erroneous idea comes from the 1919 case Schenk v. United States<\/em><\/a>. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act\u2014and had nothing to do with fires or theaters.<\/p>\n\n\n\n

In his opinion, Justice Oliver Wendell Holmes wrote<\/a> that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote<\/a> in The <\/em>Atlantic <\/em>in 2012, “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.” The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been\u2014something made all the more apparent when Schenk v. United States<\/em> was largely overturned in 1969 by Brandenburg v. Ohio<\/em><\/a>.<\/p>\n\n\n\n

“Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law\u2014or history,” Foundation for Individual Rights and Expression President Greg Lukianoff wrote<\/a> in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.””<\/p>\n\n\n\n

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Yes, You Can Yell ‘Fire’ in a Crowded Theater<\/a><\/blockquote>