WEBVTT 00:00:00.000 --> 00:00:02.799 You know, you know that specific feeling when 00:00:02.799 --> 00:00:04.759 you're scrolling through a comment section? Oh, 00:00:04.799 --> 00:00:06.679 yeah. Or maybe you're at a dinner party and someone 00:00:06.679 --> 00:00:08.679 brings up a controversial opinion. It could be 00:00:08.679 --> 00:00:12.140 about a protest or a banned book or just something 00:00:12.140 --> 00:00:14.199 spicy on the news. And you can just see it coming 00:00:14.199 --> 00:00:17.039 a mile away. Right. Someone is just waiting to 00:00:17.039 --> 00:00:20.140 drop the ultimate Trump card. It's the conversational 00:00:20.140 --> 00:00:22.420 equivalent of a nuclear option. It just shuts 00:00:22.420 --> 00:00:25.760 everything down. Exactly. They lean back. Look 00:00:25.760 --> 00:00:27.280 you in the eye and say, well, you know, the First 00:00:27.280 --> 00:00:29.300 Amendment is an absolute. You can't shout fire 00:00:29.300 --> 00:00:31.699 in a crowded theater. And that's it. Mic drop. 00:00:31.820 --> 00:00:33.939 Yeah. You're supposed to just nod and admit defeat 00:00:33.939 --> 00:00:36.579 because, well, obviously you can't shout fire 00:00:36.579 --> 00:00:40.259 in a crowded theater. It is easily the most famous 00:00:40.259 --> 00:00:44.380 six word phrase in American legal history. I 00:00:44.380 --> 00:00:46.740 mean, it's catchy, it's visual, and it really 00:00:46.740 --> 00:00:48.920 just feels like common sense. It's the one thing 00:00:48.920 --> 00:00:50.679 everyone thinks they know about constitutional 00:00:50.679 --> 00:00:53.189 law. Right. But here is the thing that drove 00:00:53.189 --> 00:00:55.869 me crazy while I was prepping for this deep dive. 00:00:55.990 --> 00:00:58.950 That phrase, it is a total lie. It's what you 00:00:58.950 --> 00:01:01.990 might call a zombie legal idea. A zombie, yes. 00:01:02.329 --> 00:01:05.170 It keeps walking around eating brains and Internet 00:01:05.170 --> 00:01:07.370 arguments, even though the Supreme Court actually 00:01:07.370 --> 00:01:09.609 put a stake in its heart more than 50 years ago. 00:01:09.790 --> 00:01:12.090 It really is a zombie. Yeah. And the irony is 00:01:12.090 --> 00:01:14.129 that most people who use it think they're citing 00:01:14.129 --> 00:01:17.670 binding law. But they're actually quoting a case. 00:01:18.079 --> 00:01:19.980 That was overturned because it was used to put 00:01:19.980 --> 00:01:22.060 people in prison for things that are completely 00:01:22.060 --> 00:01:24.879 legal today. So the mission for this deep dive 00:01:24.879 --> 00:01:27.939 is pretty clear. We are going to completely dismantle 00:01:27.939 --> 00:01:30.239 the myth of the crowded theater. Let's do it. 00:01:30.340 --> 00:01:32.420 We're going to look at where this phrase actually 00:01:32.420 --> 00:01:35.299 came from. Hint, it wasn't a theater. Right. 00:01:35.400 --> 00:01:37.920 And we'll get into why the judge who wrote it, 00:01:38.000 --> 00:01:41.500 the legendary Oliver Wendell Holmes Jr., eventually 00:01:41.500 --> 00:01:44.299 realized he had made a huge mistake. And we definitely 00:01:44.299 --> 00:01:46.879 have to talk about why that metaphor worked so 00:01:46.879 --> 00:01:49.030 well on people. Because it wasn't just a clever 00:01:49.030 --> 00:01:53.010 line. It tapped into a very specific, very traumatic 00:01:53.010 --> 00:01:56.290 fear that Americans had in the early 20th century. 00:01:56.469 --> 00:01:58.730 I want to start with the origin story because 00:01:58.730 --> 00:02:00.329 I think this is where the biggest misconception 00:02:00.329 --> 00:02:02.650 lies. I mean, I always assumed this quote came 00:02:02.650 --> 00:02:05.549 from a case where some jerk actually pulled a 00:02:05.549 --> 00:02:08.409 prank in a theater and caused a stampede. Like 00:02:08.409 --> 00:02:10.210 the Supreme Court had to step in and say, OK, 00:02:10.310 --> 00:02:12.650 pranks are fine, but not that kind of prank. 00:02:12.810 --> 00:02:15.349 Exactly. Which would make total sense. It would. 00:02:15.789 --> 00:02:18.830 But the reality is much more political. The case 00:02:18.830 --> 00:02:22.830 is Schenck v. United States from 1919. And there 00:02:22.830 --> 00:02:25.550 was no theater. No fire either. No fire. There 00:02:25.550 --> 00:02:27.650 wasn't even a shout. There was just a man named 00:02:27.650 --> 00:02:30.210 Charles Schenck. And he wasn't exactly a chaos 00:02:30.210 --> 00:02:32.389 agent causing trouble in public. He was the general 00:02:32.389 --> 00:02:34.729 secretary of the Socialist Party in Philadelphia. 00:02:34.969 --> 00:02:37.449 Right. And his big crime, the thing that got 00:02:37.449 --> 00:02:40.280 him all the way to the Supreme Court. was paperwork 00:02:40.280 --> 00:02:43.060 paperwork he oversaw the printing and mailing 00:02:43.060 --> 00:02:46.620 of about 15 000 pamphlets and i actually looked 00:02:46.620 --> 00:02:49.139 up the text of these pamphlets and honestly by 00:02:49.139 --> 00:02:51.759 today's standards they're pretty tame very tame 00:02:51.759 --> 00:02:55.280 they weren't calling for violence or a riot they 00:02:55.280 --> 00:02:57.919 were opposing the military draft during world 00:02:57.919 --> 00:03:00.599 war one there were strictly political arguments 00:03:00.599 --> 00:03:04.849 shank was arguing that the draft violated the 00:03:04.849 --> 00:03:07.530 13th Amendment. Which is the amendment that abolished 00:03:07.530 --> 00:03:10.050 slavery. Correct. The 13th Amendment prohibits 00:03:10.050 --> 00:03:13.770 involuntary servitude. So Schenck's logic was 00:03:13.770 --> 00:03:16.889 that grabbing young men off the street and forcing 00:03:16.889 --> 00:03:19.909 them to fight in a war against their will was 00:03:19.909 --> 00:03:22.990 literally involuntary servitude. I mean, that 00:03:22.990 --> 00:03:25.889 is a bold constitutional take. But whether you 00:03:25.889 --> 00:03:27.569 agree with it or not, that sounds like the very 00:03:27.569 --> 00:03:29.949 definition of political speech. You would think 00:03:29.949 --> 00:03:32.129 so. You're criticizing a government policy, the 00:03:32.129 --> 00:03:34.669 draft, using the Constitution as your primary 00:03:34.669 --> 00:03:37.009 argument. Right. But you really have to put yourself 00:03:37.009 --> 00:03:39.990 in the headspace of 1917 and 1918. Everything 00:03:39.990 --> 00:03:42.210 was different. The United States is in the thick 00:03:42.210 --> 00:03:44.629 of the Great War. Nationalism is through the 00:03:44.629 --> 00:03:47.960 roof. Paranoia is even higher. So Congress passes 00:03:47.960 --> 00:03:50.479 the Espionage Act, which basically makes it a 00:03:50.479 --> 00:03:53.419 crime to hinder the war effort. Because the government 00:03:53.419 --> 00:03:56.419 needed bodies for the trenches. Exactly. They 00:03:56.419 --> 00:03:58.740 viewed Schenck's pamphlets not as political criticism, 00:03:58.879 --> 00:04:02.039 but as act of sabotage. So they charge him with 00:04:02.039 --> 00:04:04.680 conspiring to cause insubordination in the military. 00:04:05.240 --> 00:04:07.539 And when the Supreme Court finally hears the 00:04:07.539 --> 00:04:11.250 case in 1919. Justice Holmes has to write the 00:04:11.250 --> 00:04:14.090 opinion explaining why it's OK to send this guy 00:04:14.090 --> 00:04:17.189 to jail for mailing flyers. And that is the exact 00:04:17.189 --> 00:04:19.589 moment he reaches for the metaphor. Yeah. He 00:04:19.589 --> 00:04:21.509 needs to explain why the First Amendment doesn't 00:04:21.509 --> 00:04:24.579 apply here. So he writes. The most stringent 00:04:24.579 --> 00:04:27.240 protection of free speech would not protect a 00:04:27.240 --> 00:04:30.220 man falsely shouting fire in a theater and causing 00:04:30.220 --> 00:04:32.079 a panic. I want to stop you right there because 00:04:32.079 --> 00:04:34.259 there is a word in that sentence that gets dropped 00:04:34.259 --> 00:04:36.860 almost every single time I see this argued online. 00:04:37.279 --> 00:04:39.560 Falsely. Is the most critical word in the entire 00:04:39.560 --> 00:04:42.339 opinion. Holmes wrote falsely shouting fire. 00:04:42.579 --> 00:04:44.939 Because if the theater is actually on fire. Then 00:04:44.939 --> 00:04:47.060 you better shout it. Right. If there's a fire, 00:04:47.079 --> 00:04:49.199 shouting fire isn't a crime. It's a public service. 00:04:49.379 --> 00:04:52.100 It's a moral duty. The falsely part is what makes 00:04:52.100 --> 00:04:54.339 it dangerous. But Holmes was using this to talk 00:04:54.339 --> 00:04:57.100 about a draft protest. So in his mind, Schenck's 00:04:57.100 --> 00:05:00.019 argument that the draft was bad was a lie. In 00:05:00.019 --> 00:05:03.180 a way, yes. Holmes viewed the war effort as the 00:05:03.180 --> 00:05:06.220 theater and the draft resistance as the panic. 00:05:06.780 --> 00:05:09.639 He argued that during wartime speech that hinders 00:05:09.639 --> 00:05:12.459 the recruiting service creates a clear and present 00:05:12.459 --> 00:05:15.339 danger. So this is the famous clear and present 00:05:15.339 --> 00:05:18.100 danger test. Exactly. Holmes was saying that 00:05:18.100 --> 00:05:20.819 context is everything. He said that when a nation 00:05:20.819 --> 00:05:23.279 is at war, many things that might be said in 00:05:23.279 --> 00:05:26.180 times of peace will not be endured so long as 00:05:26.180 --> 00:05:28.660 men fight. So he essentially equated handing 00:05:28.660 --> 00:05:31.579 out a pamphlet to causing a deadly stampede. 00:05:32.000 --> 00:05:34.279 Legally speaking, he drew an equal sign between 00:05:34.279 --> 00:05:36.689 those two acts. He did. And that's what condemned 00:05:36.689 --> 00:05:39.790 Charles Schenck. But we really have to ask, why 00:05:39.790 --> 00:05:42.370 did that specific image that crowded theater... 00:05:42.759 --> 00:05:44.759 work so well? Why did the public just nod along 00:05:44.759 --> 00:05:46.300 and say, yeah, that makes sense? This was the 00:05:46.300 --> 00:05:47.819 part of the research that really hit me hard. 00:05:47.899 --> 00:05:50.019 I think we living in the 21st century take fire 00:05:50.019 --> 00:05:52.180 safety totally for granted. Oh, absolutely. We 00:05:52.180 --> 00:05:54.160 have sprinklers. We have strict occupancy limits. 00:05:54.300 --> 00:05:56.399 We have those glowing exit signs that work even 00:05:56.399 --> 00:05:59.620 when the power goes out. But in 1919... Theaters 00:05:59.620 --> 00:06:01.600 were terrifying. Oh, well. They were routinely 00:06:01.600 --> 00:06:04.800 referred to as fire traps. The film stock back 00:06:04.800 --> 00:06:07.459 then was nitrocellulose, which is incredibly 00:06:07.459 --> 00:06:10.389 flammable. The lighting was often open flame 00:06:10.389 --> 00:06:13.389 or hot electric arcs. And the exits were a nightmare. 00:06:13.689 --> 00:06:15.970 They were often confusing, hidden, or in some 00:06:15.970 --> 00:06:18.790 really tragic cases, locked to keep people from 00:06:18.790 --> 00:06:21.509 sneaking in without paying. So fear of being 00:06:21.509 --> 00:06:23.689 trapped in a burning building was a very real, 00:06:23.769 --> 00:06:26.449 very daily anxiety for people. It was a recurring 00:06:26.449 --> 00:06:28.689 nightmare. And there had been these massive, 00:06:28.750 --> 00:06:31.430 high -profile disasters that were just burned 00:06:31.430 --> 00:06:33.529 into the public consciousness. I was reading 00:06:33.529 --> 00:06:36.509 about the Cannonsburg Opera House disaster in 00:06:36.509 --> 00:06:38.850 Pennsylvania. This was 1911, so just a few years 00:06:38.850 --> 00:06:41.170 before the Schenck case. That one was just heartbreaking. 00:06:41.470 --> 00:06:44.870 It wasn't even a real fire. No. A projector malfunctioned 00:06:44.870 --> 00:06:46.709 and flashed a super bright light on the screen. 00:06:47.310 --> 00:06:50.209 Someone in the audience shouted, fire, and panic 00:06:50.209 --> 00:06:52.149 ensued immediately. And the result wasn't just 00:06:52.149 --> 00:06:55.269 a ruined movie. No. 26 people were crushed to 00:06:55.269 --> 00:06:57.250 death in the stairwell trying to get out. 26 00:06:57.250 --> 00:06:59.769 people dead literally because of a word. Yep. 00:06:59.850 --> 00:07:01.649 And then there was the Shiloh Baptist Church 00:07:01.649 --> 00:07:05.329 disaster even earlier in 1902. Oh, right. I remember 00:07:05.329 --> 00:07:07.310 looking at that one. That wasn't even a theater. 00:07:07.470 --> 00:07:09.990 No, it was a church. A fight broke out in the 00:07:09.990 --> 00:07:12.689 choir during a speech. Someone shouted, fight, 00:07:12.810 --> 00:07:15.810 to alert people. But in the chaos, people heard 00:07:15.810 --> 00:07:18.990 fire. And over 100 people died in the crush toward 00:07:18.990 --> 00:07:21.779 the doors. Over 100. Over a misunderstanding. 00:07:22.360 --> 00:07:25.399 And then two years after Cannonsburg in 1913, 00:07:25.639 --> 00:07:28.079 you have the Italian Hall disaster in Calumet, 00:07:28.120 --> 00:07:31.720 Michigan. This story is just, it's heavy. It's 00:07:31.720 --> 00:07:33.620 one of the darkest moments in American labor 00:07:33.620 --> 00:07:35.819 history. This was a Christmas party, right? Yes. 00:07:35.959 --> 00:07:38.319 Okay. It was a Christmas Eve party for striking 00:07:38.319 --> 00:07:40.680 copper miners and their families. These were 00:07:40.680 --> 00:07:43.139 Union folks, many of them immigrants, who were 00:07:43.139 --> 00:07:44.959 locked in this bitter struggle with the mine 00:07:44.959 --> 00:07:47.579 owners. And the Hall was up on the second floor. 00:07:47.930 --> 00:07:50.009 packed with families. Tensions must have been 00:07:50.009 --> 00:07:52.370 so high because of the strike. Extremely high. 00:07:52.529 --> 00:07:55.209 And in the middle of the party, someone, and 00:07:55.209 --> 00:07:57.470 history, suggests it might have been an anti 00:07:57.470 --> 00:08:00.790 -union agitator wearing a specific button, opened 00:08:00.790 --> 00:08:02.970 the door and shouted fire into the crowded room. 00:08:03.189 --> 00:08:05.410 And again, there was no fire. No fire at all. 00:08:05.970 --> 00:08:09.069 But the terror was absolute. People rushed for 00:08:09.069 --> 00:08:12.470 the stairs. It became a massive crush. 73 people 00:08:12.470 --> 00:08:15.829 died. 73 people. And 59 of them were children. 00:08:16.050 --> 00:08:19.019 God. 59 tits. So when Justice Holmes writes that 00:08:19.019 --> 00:08:21.620 opinion in 1919, he isn't just coming up with 00:08:21.620 --> 00:08:24.399 a clever hypothetical to make a point. He's tapping 00:08:24.399 --> 00:08:28.220 into a raw national trauma. Precisely. Everyone 00:08:28.220 --> 00:08:30.579 reading that decision would have instantly pictured 00:08:30.579 --> 00:08:34.360 the bodies at Italian Hall or Cannonsburg. Holmes 00:08:34.360 --> 00:08:36.399 knew exactly what he was doing. He took a political 00:08:36.399 --> 00:08:39.200 dissident, just a guy handing out flyers, and 00:08:39.200 --> 00:08:41.559 psychologically linked him to the kind of monster 00:08:41.559 --> 00:08:43.379 who would kill children at a Christmas party? 00:08:43.600 --> 00:08:45.940 It's a brilliantly effective rhetorical weapon. 00:08:46.399 --> 00:08:48.779 It bypasses your logic entirely and goes straight 00:08:48.779 --> 00:08:51.019 to your lizard brain. You think, well, obviously 00:08:51.019 --> 00:08:53.360 we have to stop people from killing kids. And 00:08:53.360 --> 00:08:55.360 before you know it, you've agreed to jail a socialist 00:08:55.360 --> 00:08:57.980 for opposing the draft. And here's a little secret 00:08:57.980 --> 00:09:01.139 that legal historians have dug up, which blew 00:09:01.139 --> 00:09:03.580 my mind. Holmes didn't even invent the analogy. 00:09:03.720 --> 00:09:05.740 He copied it. He copied it. Yeah. From where, 00:09:05.759 --> 00:09:08.889 though? From a prosecutor. In 1918, Eugene V. 00:09:08.909 --> 00:09:11.789 Debs, the really famous socialist leader, was 00:09:11.789 --> 00:09:14.710 on trial for an anti -war speech. And the federal 00:09:14.710 --> 00:09:17.110 prosecutor in that case, a guy named Edwin Wurtz, 00:09:17.230 --> 00:09:20.389 used the fire in a crowded theater argument in 00:09:20.389 --> 00:09:22.289 his closing statement to the jury. Wait, so the 00:09:22.289 --> 00:09:24.789 Supreme Court justice effectively copy pasted 00:09:24.789 --> 00:09:27.009 a prosecutor's closing argument into the law 00:09:27.009 --> 00:09:29.350 of the land? He did, which explains why it feels 00:09:29.350 --> 00:09:31.350 so aggressive. It was designed to win a conviction 00:09:31.350 --> 00:09:33.909 not to provide a balanced analysis of civil liberties. 00:09:34.129 --> 00:09:36.799 OK, so that's 1919. We have the clear and present 00:09:36.799 --> 00:09:39.080 danger test. And for decades, the government 00:09:39.080 --> 00:09:41.480 uses this test to suppress all kinds of speech. 00:09:42.159 --> 00:09:45.360 Communists, union organizers, pacifists, anyone 00:09:45.360 --> 00:09:47.519 who rocked the boat was shouting fire. Right. 00:09:47.620 --> 00:09:49.980 It gave the government incredibly broad power 00:09:49.980 --> 00:09:52.320 to define what danger meant. But you said this 00:09:52.320 --> 00:09:54.559 is a zombie idea. That means it's legally dead. 00:09:54.659 --> 00:09:57.000 When did the legal system finally say enough 00:09:57.000 --> 00:10:00.120 is enough? The big shift happens exactly 50 years 00:10:00.120 --> 00:10:03.659 later in 1969. The case is Brandenburg v. Ohio. 00:10:04.080 --> 00:10:06.340 And by then, the world has changed. We've been 00:10:06.340 --> 00:10:08.639 through the civil rights movement, the anti -Vietnam 00:10:08.639 --> 00:10:11.519 War protests. The culture had shifted. Exactly. 00:10:12.039 --> 00:10:15.279 The Supreme Court is realizing that maybe silencing 00:10:15.279 --> 00:10:17.019 dissent isn't the best way to run a democracy. 00:10:17.610 --> 00:10:20.409 And Brandenburg is kind of a wild case because 00:10:20.409 --> 00:10:24.389 unlike Schenck, who was a pacifist, Brandenburg 00:10:24.389 --> 00:10:27.009 was, well, he was a really bad guy. He was a 00:10:27.009 --> 00:10:30.269 leader in the Ku Klux Klan. The speech in question 00:10:30.269 --> 00:10:33.450 was filmed at a Klan rally. It was racist. It 00:10:33.450 --> 00:10:36.169 was hateful. And it vaguely threatened what he 00:10:36.169 --> 00:10:38.330 called revengeance against the government. It's 00:10:38.330 --> 00:10:40.370 always the worst people who end up setting the 00:10:40.370 --> 00:10:42.549 most important free speech precedents. It really 00:10:42.549 --> 00:10:44.789 is a paradox of the First Amendment. But the 00:10:44.789 --> 00:10:46.929 Supreme Court looked at his conviction and said, 00:10:46.950 --> 00:10:49.460 you know what? This doesn't stick. They effectively 00:10:49.460 --> 00:10:51.720 threw out the clear and present danger test. 00:10:51.919 --> 00:10:54.279 They decided it was just too loose. So they replaced 00:10:54.279 --> 00:10:56.519 it with something stricter. Much stricter. They 00:10:56.519 --> 00:10:58.419 established what we call the imminent lawless 00:10:58.419 --> 00:11:00.659 action test. Imminent lawless action. I want 00:11:00.659 --> 00:11:02.279 to break this down because this is the technical 00:11:02.279 --> 00:11:05.000 part that actually matters today. How is this 00:11:05.000 --> 00:11:08.220 different from Holmes' test? The key differences 00:11:08.220 --> 00:11:11.460 are time and intent. Under Holmes and Schenck, 00:11:11.539 --> 00:11:14.639 you could punish speech if it might cause a problem 00:11:14.639 --> 00:11:16.799 eventually. Like someday down the line. Right. 00:11:17.159 --> 00:11:19.679 But under Brandenburg, the government can only 00:11:19.679 --> 00:11:23.179 ban speech if it is directed to inciting immediate 00:11:23.179 --> 00:11:26.220 lawless action and is likely to produce such 00:11:26.220 --> 00:11:29.220 action. Okay, let me try to apply this. If I 00:11:29.220 --> 00:11:32.940 stand on a soapbox in the park and say, the government 00:11:32.940 --> 00:11:35.019 is corrupt and we should burn it all down someday, 00:11:35.240 --> 00:11:38.340 is that protected? Yes. That is abstract advocacy. 00:11:39.039 --> 00:11:41.799 You are advocating for an idea even if it's a 00:11:41.799 --> 00:11:43.980 violent idea. But if I'm standing in front of 00:11:43.980 --> 00:11:46.440 an angry mob and I hand them bricks and I point 00:11:46.440 --> 00:11:49.159 at a specific building and scream smash those 00:11:49.159 --> 00:11:51.480 windows right now? That is imminent lawless action 00:11:51.480 --> 00:11:54.039 that is not protected. The danger is immediate 00:11:54.039 --> 00:11:56.580 and your words are the literal trigger. So applying 00:11:56.580 --> 00:11:59.039 this back to Charles Schenck and his anti -draft 00:11:59.039 --> 00:12:02.220 pamphlets. Under the 1969 Brandenburg Standard, 00:12:02.399 --> 00:12:05.799 Schenck is an innocent man. Handing out a flyer 00:12:05.799 --> 00:12:08.820 is advocacy. It takes time for someone to read 00:12:08.820 --> 00:12:11.240 it and think about it and decide what to do. 00:12:11.360 --> 00:12:13.779 It's not a reflex. Exactly. It's not a stampede. 00:12:13.860 --> 00:12:15.620 Which means the clear and present danger test 00:12:15.620 --> 00:12:17.580 and the fire in a crowded theater justification 00:12:17.580 --> 00:12:20.340 for it is legally obsolete. Totally obsolete. 00:12:20.600 --> 00:12:23.799 It was dictum, which just means an illustration 00:12:23.799 --> 00:12:26.100 in a case that has been completely overturned. 00:12:26.399 --> 00:12:29.720 Citing it today to justify censorship is like 00:12:29.720 --> 00:12:32.139 citing the Dred Scott decision to argue about 00:12:32.139 --> 00:12:34.740 citizenship laws. It's just really bad history. 00:12:35.149 --> 00:12:37.370 What I find really fascinating about this story, 00:12:37.429 --> 00:12:39.730 though, and maybe a little hopeful, is that Holmes 00:12:39.730 --> 00:12:42.590 himself seemed to realize he messed up. He did. 00:12:42.769 --> 00:12:44.830 And it didn't take him 50 years. It happened 00:12:44.830 --> 00:12:47.350 almost immediately. After the Schenck decision, 00:12:47.649 --> 00:12:50.809 he faced some serious criticism from legal scholars. 00:12:51.309 --> 00:12:53.750 One in particular, a young Harvard professor 00:12:53.750 --> 00:12:56.649 named Zachariah Chafee, actually sat down with 00:12:56.649 --> 00:12:59.240 Holmes. What did Chafee tell him? He challenged 00:12:59.240 --> 00:13:01.399 the metaphor directly. He basically told Holmes, 00:13:01.519 --> 00:13:03.659 you got the analogy wrong. Schenck wasn't the 00:13:03.659 --> 00:13:06.639 guy falsely shouting fire to cause a panic. Schenck 00:13:06.639 --> 00:13:08.860 was like a man in a theater standing up and telling 00:13:08.860 --> 00:13:10.759 the audience, hey, there aren't enough fire exits. 00:13:11.000 --> 00:13:13.320 Management has locked the doors. Oh, wow. That 00:13:13.320 --> 00:13:16.200 completely flips the script. It changes everything. 00:13:16.980 --> 00:13:20.179 If you are warning people about a real danger 00:13:20.179 --> 00:13:23.179 like a war or the draft or unsafe working conditions, 00:13:23.279 --> 00:13:26.419 that isn't a false alarm. That is the exact kind 00:13:26.419 --> 00:13:28.259 of warning the First Amendment is designed to 00:13:28.259 --> 00:13:30.139 protect. Did Holmes actually listen to this? 00:13:30.320 --> 00:13:33.299 He did. Later that very same year, in a case 00:13:33.299 --> 00:13:36.340 called Abrams v. United States, Holmes dissented. 00:13:36.379 --> 00:13:38.899 He switched sides. No way. Yeah, he argued that 00:13:38.899 --> 00:13:40.720 the government shouldn't be jailing people for 00:13:40.720 --> 00:13:43.799 a silly leaflet by an unknown man. He started 00:13:43.799 --> 00:13:46.139 talking about the marketplace of ideas. It's 00:13:46.139 --> 00:13:48.519 amazing that the guy who created the weapon to 00:13:48.519 --> 00:13:51.080 destroy free speech eventually tried to disarm 00:13:51.080 --> 00:13:53.929 it himself. But the phrase stuck anyway. It's 00:13:53.929 --> 00:13:55.710 like it's deeper in our culture than the correction. 00:13:55.970 --> 00:13:58.330 It is. But smart people have been trying to kill 00:13:58.330 --> 00:14:00.629 it for a long time. The late Christopher Hitchens, 00:14:00.769 --> 00:14:03.129 who was never one to hold back, had a brilliant 00:14:03.129 --> 00:14:05.029 take on this. Oh, I love a good Hitchens rant. 00:14:05.129 --> 00:14:07.190 What was his angle? He called the Schenck verdict 00:14:07.190 --> 00:14:10.970 fatuous. He pointed out that the socialists opposing 00:14:10.970 --> 00:14:14.570 World War I were the real firefighters. They 00:14:14.570 --> 00:14:16.409 were the ones shouting fire when there really 00:14:16.409 --> 00:14:19.110 was a fire. The fire was the war itself. And 00:14:19.110 --> 00:14:20.990 that leads to the ultimate question of censorship. 00:14:21.519 --> 00:14:24.860 Who decides? Exactly. Hitchens asked who is to 00:14:24.860 --> 00:14:28.659 decide. If the state gets to decide that your 00:14:28.659 --> 00:14:31.899 political protest is a false alarm, then the 00:14:31.899 --> 00:14:34.700 state can silence any dissent it finds inconvenient 00:14:34.700 --> 00:14:38.580 just by labeling it dangerous. This reminds me 00:14:38.580 --> 00:14:40.940 of Ken White. He's a well -known First Amendment 00:14:40.940 --> 00:14:42.960 attorney who writes under the name Pope Hat. 00:14:43.139 --> 00:14:45.679 He calls the fire phrase a red herring. Yes, 00:14:45.720 --> 00:14:48.559 Ken White is fantastic on this. He argues that 00:14:48.559 --> 00:14:50.500 when people use the fire in a crowded theater 00:14:50.500 --> 00:14:53.220 line, they are actively trying to distract you. 00:14:53.299 --> 00:14:55.340 They use it to suggest that the First Amendment 00:14:55.340 --> 00:14:58.279 is this vague, squishy thing where we just balance 00:14:58.279 --> 00:15:00.519 free speech against social harm. But the law 00:15:00.519 --> 00:15:03.279 isn't squishy anymore. No, it's not. Under current 00:15:03.279 --> 00:15:05.659 law, like cases such as United States v. Stevens, 00:15:06.279 --> 00:15:08.360 The exceptions to the First Amendment are historic 00:15:08.360 --> 00:15:10.659 and well -defined. We're talking about true threats, 00:15:10.860 --> 00:15:13.200 defamation, fraud, incitement. You can't just 00:15:13.200 --> 00:15:15.159 invent new exceptions because you think speech 00:15:15.159 --> 00:15:17.700 is harmful or hateful. So when someone says you 00:15:17.700 --> 00:15:19.860 can't shout fire, they're basically saying, I 00:15:19.860 --> 00:15:22.120 wish the law allowed us to ban things I personally 00:15:22.120 --> 00:15:25.139 think are bad? Exactly. They are wishing for 00:15:25.139 --> 00:15:28.539 a flexibility that the Constitution simply does 00:15:28.539 --> 00:15:31.139 not allow. Okay, so we've established it's a 00:15:31.139 --> 00:15:33.240 bad analogy, it's bad law, and it's a distraction. 00:15:33.639 --> 00:15:35.940 But I have to ask the practical question, because 00:15:35.940 --> 00:15:38.519 I know listeners are wondering, can I actually 00:15:38.519 --> 00:15:42.200 shout fire in a crowded theater? Like, practically 00:15:42.200 --> 00:15:44.000 speaking, if I go to the movies tonight and scream 00:15:44.000 --> 00:15:46.700 it, what happens to me? This is where we need 00:15:46.700 --> 00:15:50.220 to be really precise. It is not a speech crime 00:15:50.220 --> 00:15:54.120 to say the word fire. The First Amendment doesn't 00:15:54.120 --> 00:15:56.840 have a list of forbidden words. However... You 00:15:56.840 --> 00:15:58.639 are responsible for the consequences of your 00:15:58.639 --> 00:16:00.659 actions. So if I yell it and everyone just looks 00:16:00.659 --> 00:16:02.059 at me, rolls around and tells me to shut up. 00:16:02.120 --> 00:16:03.820 You haven't committed a crime. You might get 00:16:03.820 --> 00:16:05.740 kicked out by the manager for being a nuisance, 00:16:05.840 --> 00:16:08.120 but you aren't going to jail. But if I do it 00:16:08.120 --> 00:16:11.120 falsely, knowing there is no fire and it causes 00:16:11.120 --> 00:16:13.259 a panic where someone gets trampled. Then you 00:16:13.259 --> 00:16:16.080 are in serious trouble, but not for speech. You 00:16:16.080 --> 00:16:18.899 are in trouble for involuntary manslaughter or 00:16:18.899 --> 00:16:21.059 at the very least disorderly conduct. Right. 00:16:21.139 --> 00:16:23.740 In Colorado, for example, falsely reporting an 00:16:23.740 --> 00:16:26.590 emergency is a misdemeanor. But if that report 00:16:26.590 --> 00:16:29.029 leads to someone getting seriously hurt or dying, 00:16:29.230 --> 00:16:32.710 it upgrades to a felony. So the law focuses on 00:16:32.710 --> 00:16:35.529 the fraud and the physical harm, not the words 00:16:35.529 --> 00:16:37.909 themselves. Correct. Think of it like fraud. 00:16:38.129 --> 00:16:41.070 You can say the words, I have a gold watch. That's 00:16:41.070 --> 00:16:43.809 free speech. But if you take my money and give 00:16:43.809 --> 00:16:46.269 me a fake watch, you've committed a crime. A 00:16:46.269 --> 00:16:48.769 crime isn't the words. It's the theft by deception. 00:16:49.509 --> 00:16:52.330 Shouting fire falsely is causing a panic by deception. 00:16:52.720 --> 00:16:55.019 And just to be absolutely clear, because we don't 00:16:55.019 --> 00:16:57.100 want this deep dive to be cited in a lawsuit 00:16:57.100 --> 00:16:59.460 if the theater is on fire. Please, for the love 00:16:59.460 --> 00:17:02.440 of everything, shout fire. The law protects you 00:17:02.440 --> 00:17:04.319 if you reasonably believe there is a danger. 00:17:04.740 --> 00:17:06.880 The myth implies that you can never speak if 00:17:06.880 --> 00:17:09.759 it causes a panic. But if the panic is necessary 00:17:09.759 --> 00:17:12.519 to get people to the exits, the speech is not 00:17:12.519 --> 00:17:16.000 only legal, it's absolutely necessary. It really 00:17:16.000 --> 00:17:18.019 circles back to that point Chafee made to Holmes. 00:17:18.220 --> 00:17:19.859 The socialists thought the house was burning 00:17:19.859 --> 00:17:22.319 down. They thought the draft was the fire. And 00:17:22.319 --> 00:17:24.579 that is why the crowded theater analogy is so 00:17:24.579 --> 00:17:28.220 dangerous. It frames the status quo as safe and 00:17:28.220 --> 00:17:31.480 the dissenter as the danger. But in a healthy 00:17:31.480 --> 00:17:34.299 democracy, we need people to be able to say, 00:17:34.380 --> 00:17:37.930 hey. I think I smell smoke, even if the government 00:17:37.930 --> 00:17:40.349 insists everything is totally fine. We've covered 00:17:40.349 --> 00:17:43.349 a lot of ground today. We went from a 1919 draft 00:17:43.349 --> 00:17:45.670 protest to a misunderstanding that has lasted 00:17:45.670 --> 00:17:48.390 a century. We learned that the clear and present 00:17:48.390 --> 00:17:51.710 danger test is dead, replaced by the much stricter 00:17:51.710 --> 00:17:54.349 imminent lawless action standard. And we learned 00:17:54.349 --> 00:17:56.309 that even the man who wrote the phrase Justice 00:17:56.309 --> 00:17:59.150 Holmes eventually realized that comparing political 00:17:59.150 --> 00:18:01.650 pamphlets to a death trap was a major mistake. 00:18:02.119 --> 00:18:03.460 So the next time you're in a comment section 00:18:03.460 --> 00:18:05.539 or at that dinner party and someone plays the 00:18:05.539 --> 00:18:07.940 fire in a crowded theater card to shut you down, 00:18:08.059 --> 00:18:10.400 you don't have to just take it. You can tell 00:18:10.400 --> 00:18:12.119 them it's a red herring. Yeah. You can tell them 00:18:12.119 --> 00:18:14.359 that unless they are inciting an immediate riot, 00:18:14.599 --> 00:18:16.640 the First Amendment is a lot stronger than they 00:18:16.640 --> 00:18:18.839 think. I want to leave you with one final thought 00:18:18.839 --> 00:18:21.960 to mull over. We cling to this myth because we 00:18:21.960 --> 00:18:24.680 crave safety. We want to believe there's a clear 00:18:24.680 --> 00:18:27.480 line where speech becomes too dangerous so we 00:18:27.480 --> 00:18:30.440 can stop it. But the history we looked at today, 00:18:30.539 --> 00:18:33.039 from Schenek to the tragedies at Italian Hall, 00:18:33.220 --> 00:18:35.880 shows us that when we draw those lines too broadly, 00:18:36.059 --> 00:18:38.539 we don't just stop the false alarms, we stop 00:18:38.539 --> 00:18:40.859 the warnings. We silence the people pointing 00:18:40.859 --> 00:18:43.420 at the smoke. And in the marketplace of ideas, 00:18:43.519 --> 00:18:45.799 isn't it better to risk a few false alarms than 00:18:45.799 --> 00:18:48.160 to burn down with the exits locked? That is the 00:18:48.160 --> 00:18:50.259 ultimate question. Who do you trust to decide 00:18:50.259 --> 00:18:52.619 when the fire is real? Thanks for joining us 00:18:52.619 --> 00:18:54.220 on this deep dive. See you next time.