You know, you know that specific feeling when
you're scrolling through a comment section? Oh,
yeah. Or maybe you're at a dinner party and someone
brings up a controversial opinion. It could be
about a protest or a banned book or just something
spicy on the news. And you can just see it coming
a mile away. Right. Someone is just waiting to
drop the ultimate Trump card. It's the conversational
equivalent of a nuclear option. It just shuts
everything down. Exactly. They lean back. Look
you in the eye and say, well, you know, the First
Amendment is an absolute. You can't shout fire
in a crowded theater. And that's it. Mic drop.
Yeah. You're supposed to just nod and admit defeat
because, well, obviously you can't shout fire
in a crowded theater. It is easily the most famous
six word phrase in American legal history. I
mean, it's catchy, it's visual, and it really
just feels like common sense. It's the one thing
everyone thinks they know about constitutional
law. Right. But here is the thing that drove
me crazy while I was prepping for this deep dive.
That phrase, it is a total lie. It's what you
might call a zombie legal idea. A zombie, yes.
It keeps walking around eating brains and Internet
arguments, even though the Supreme Court actually
put a stake in its heart more than 50 years ago.
It really is a zombie. Yeah. And the irony is
that most people who use it think they're citing
binding law. But they're actually quoting a case.
That was overturned because it was used to put
people in prison for things that are completely
legal today. So the mission for this deep dive
is pretty clear. We are going to completely dismantle
the myth of the crowded theater. Let's do it.
We're going to look at where this phrase actually
came from. Hint, it wasn't a theater. Right.
And we'll get into why the judge who wrote it,
the legendary Oliver Wendell Holmes Jr., eventually
realized he had made a huge mistake. And we definitely
have to talk about why that metaphor worked so
well on people. Because it wasn't just a clever
line. It tapped into a very specific, very traumatic
fear that Americans had in the early 20th century.
I want to start with the origin story because
I think this is where the biggest misconception
lies. I mean, I always assumed this quote came
from a case where some jerk actually pulled a
prank in a theater and caused a stampede. Like
the Supreme Court had to step in and say, OK,
pranks are fine, but not that kind of prank.
Exactly. Which would make total sense. It would.
But the reality is much more political. The case
is Schenck v. United States from 1919. And there
was no theater. No fire either. No fire. There
wasn't even a shout. There was just a man named
Charles Schenck. And he wasn't exactly a chaos
agent causing trouble in public. He was the general
secretary of the Socialist Party in Philadelphia.
Right. And his big crime, the thing that got
him all the way to the Supreme Court. was paperwork
paperwork he oversaw the printing and mailing
of about 15 000 pamphlets and i actually looked
up the text of these pamphlets and honestly by
today's standards they're pretty tame very tame
they weren't calling for violence or a riot they
were opposing the military draft during world
war one there were strictly political arguments
shank was arguing that the draft violated the
13th Amendment. Which is the amendment that abolished
slavery. Correct. The 13th Amendment prohibits
involuntary servitude. So Schenck's logic was
that grabbing young men off the street and forcing
them to fight in a war against their will was
literally involuntary servitude. I mean, that
is a bold constitutional take. But whether you
agree with it or not, that sounds like the very
definition of political speech. You would think
so. You're criticizing a government policy, the
draft, using the Constitution as your primary
argument. Right. But you really have to put yourself
in the headspace of 1917 and 1918. Everything
was different. The United States is in the thick
of the Great War. Nationalism is through the
roof. Paranoia is even higher. So Congress passes
the Espionage Act, which basically makes it a
crime to hinder the war effort. Because the government
needed bodies for the trenches. Exactly. They
viewed Schenck's pamphlets not as political criticism,
but as act of sabotage. So they charge him with
conspiring to cause insubordination in the military.
And when the Supreme Court finally hears the
case in 1919. Justice Holmes has to write the
opinion explaining why it's OK to send this guy
to jail for mailing flyers. And that is the exact
moment he reaches for the metaphor. Yeah. He
needs to explain why the First Amendment doesn't
apply here. So he writes. The most stringent
protection of free speech would not protect a
man falsely shouting fire in a theater and causing
a panic. I want to stop you right there because
there is a word in that sentence that gets dropped
almost every single time I see this argued online.
Falsely. Is the most critical word in the entire
opinion. Holmes wrote falsely shouting fire.
Because if the theater is actually on fire. Then
you better shout it. Right. If there's a fire,
shouting fire isn't a crime. It's a public service.
It's a moral duty. The falsely part is what makes
it dangerous. But Holmes was using this to talk
about a draft protest. So in his mind, Schenck's
argument that the draft was bad was a lie. In
a way, yes. Holmes viewed the war effort as the
theater and the draft resistance as the panic.
He argued that during wartime speech that hinders
the recruiting service creates a clear and present
danger. So this is the famous clear and present
danger test. Exactly. Holmes was saying that
context is everything. He said that when a nation
is at war, many things that might be said in
times of peace will not be endured so long as
men fight. So he essentially equated handing
out a pamphlet to causing a deadly stampede.
Legally speaking, he drew an equal sign between
those two acts. He did. And that's what condemned
Charles Schenck. But we really have to ask, why
did that specific image that crowded theater...
work so well? Why did the public just nod along
and say, yeah, that makes sense? This was the
part of the research that really hit me hard.
I think we living in the 21st century take fire
safety totally for granted. Oh, absolutely. We
have sprinklers. We have strict occupancy limits.
We have those glowing exit signs that work even
when the power goes out. But in 1919... Theaters
were terrifying. Oh, well. They were routinely
referred to as fire traps. The film stock back
then was nitrocellulose, which is incredibly
flammable. The lighting was often open flame
or hot electric arcs. And the exits were a nightmare.
They were often confusing, hidden, or in some
really tragic cases, locked to keep people from
sneaking in without paying. So fear of being
trapped in a burning building was a very real,
very daily anxiety for people. It was a recurring
nightmare. And there had been these massive,
high -profile disasters that were just burned
into the public consciousness. I was reading
about the Cannonsburg Opera House disaster in
Pennsylvania. This was 1911, so just a few years
before the Schenck case. That one was just heartbreaking.
It wasn't even a real fire. No. A projector malfunctioned
and flashed a super bright light on the screen.
Someone in the audience shouted, fire, and panic
ensued immediately. And the result wasn't just
a ruined movie. No. 26 people were crushed to
death in the stairwell trying to get out. 26
people dead literally because of a word. Yep.
And then there was the Shiloh Baptist Church
disaster even earlier in 1902. Oh, right. I remember
looking at that one. That wasn't even a theater.
No, it was a church. A fight broke out in the
choir during a speech. Someone shouted, fight,
to alert people. But in the chaos, people heard
fire. And over 100 people died in the crush toward
the doors. Over 100. Over a misunderstanding.
And then two years after Cannonsburg in 1913,
you have the Italian Hall disaster in Calumet,
Michigan. This story is just, it's heavy. It's
one of the darkest moments in American labor
history. This was a Christmas party, right? Yes.
Okay. It was a Christmas Eve party for striking
copper miners and their families. These were
Union folks, many of them immigrants, who were
locked in this bitter struggle with the mine
owners. And the Hall was up on the second floor.
packed with families. Tensions must have been
so high because of the strike. Extremely high.
And in the middle of the party, someone, and
history, suggests it might have been an anti
-union agitator wearing a specific button, opened
the door and shouted fire into the crowded room.
And again, there was no fire. No fire at all.
But the terror was absolute. People rushed for
the stairs. It became a massive crush. 73 people
died. 73 people. And 59 of them were children.
God. 59 tits. So when Justice Holmes writes that
opinion in 1919, he isn't just coming up with
a clever hypothetical to make a point. He's tapping
into a raw national trauma. Precisely. Everyone
reading that decision would have instantly pictured
the bodies at Italian Hall or Cannonsburg. Holmes
knew exactly what he was doing. He took a political
dissident, just a guy handing out flyers, and
psychologically linked him to the kind of monster
who would kill children at a Christmas party?
It's a brilliantly effective rhetorical weapon.
It bypasses your logic entirely and goes straight
to your lizard brain. You think, well, obviously
we have to stop people from killing kids. And
before you know it, you've agreed to jail a socialist
for opposing the draft. And here's a little secret
that legal historians have dug up, which blew
my mind. Holmes didn't even invent the analogy.
He copied it. He copied it. Yeah. From where,
though? From a prosecutor. In 1918, Eugene V.
Debs, the really famous socialist leader, was
on trial for an anti -war speech. And the federal
prosecutor in that case, a guy named Edwin Wurtz,
used the fire in a crowded theater argument in
his closing statement to the jury. Wait, so the
Supreme Court justice effectively copy pasted
a prosecutor's closing argument into the law
of the land? He did, which explains why it feels
so aggressive. It was designed to win a conviction
not to provide a balanced analysis of civil liberties.
OK, so that's 1919. We have the clear and present
danger test. And for decades, the government
uses this test to suppress all kinds of speech.
Communists, union organizers, pacifists, anyone
who rocked the boat was shouting fire. Right.
It gave the government incredibly broad power
to define what danger meant. But you said this
is a zombie idea. That means it's legally dead.
When did the legal system finally say enough
is enough? The big shift happens exactly 50 years
later in 1969. The case is Brandenburg v. Ohio.
And by then, the world has changed. We've been
through the civil rights movement, the anti -Vietnam
War protests. The culture had shifted. Exactly.
The Supreme Court is realizing that maybe silencing
dissent isn't the best way to run a democracy.
And Brandenburg is kind of a wild case because
unlike Schenck, who was a pacifist, Brandenburg
was, well, he was a really bad guy. He was a
leader in the Ku Klux Klan. The speech in question
was filmed at a Klan rally. It was racist. It
was hateful. And it vaguely threatened what he
called revengeance against the government. It's
always the worst people who end up setting the
most important free speech precedents. It really
is a paradox of the First Amendment. But the
Supreme Court looked at his conviction and said,
you know what? This doesn't stick. They effectively
threw out the clear and present danger test.
They decided it was just too loose. So they replaced
it with something stricter. Much stricter. They
established what we call the imminent lawless
action test. Imminent lawless action. I want
to break this down because this is the technical
part that actually matters today. How is this
different from Holmes' test? The key differences
are time and intent. Under Holmes and Schenck,
you could punish speech if it might cause a problem
eventually. Like someday down the line. Right.
But under Brandenburg, the government can only
ban speech if it is directed to inciting immediate
lawless action and is likely to produce such
action. Okay, let me try to apply this. If I
stand on a soapbox in the park and say, the government
is corrupt and we should burn it all down someday,
is that protected? Yes. That is abstract advocacy.
You are advocating for an idea even if it's a
violent idea. But if I'm standing in front of
an angry mob and I hand them bricks and I point
at a specific building and scream smash those
windows right now? That is imminent lawless action
that is not protected. The danger is immediate
and your words are the literal trigger. So applying
this back to Charles Schenck and his anti -draft
pamphlets. Under the 1969 Brandenburg Standard,
Schenck is an innocent man. Handing out a flyer
is advocacy. It takes time for someone to read
it and think about it and decide what to do.
It's not a reflex. Exactly. It's not a stampede.
Which means the clear and present danger test
and the fire in a crowded theater justification
for it is legally obsolete. Totally obsolete.
It was dictum, which just means an illustration
in a case that has been completely overturned.
Citing it today to justify censorship is like
citing the Dred Scott decision to argue about
citizenship laws. It's just really bad history.
What I find really fascinating about this story,
though, and maybe a little hopeful, is that Holmes
himself seemed to realize he messed up. He did.
And it didn't take him 50 years. It happened
almost immediately. After the Schenck decision,
he faced some serious criticism from legal scholars.
One in particular, a young Harvard professor
named Zachariah Chafee, actually sat down with
Holmes. What did Chafee tell him? He challenged
the metaphor directly. He basically told Holmes,
you got the analogy wrong. Schenck wasn't the
guy falsely shouting fire to cause a panic. Schenck
was like a man in a theater standing up and telling
the audience, hey, there aren't enough fire exits.
Management has locked the doors. Oh, wow. That
completely flips the script. It changes everything.
If you are warning people about a real danger
like a war or the draft or unsafe working conditions,
that isn't a false alarm. That is the exact kind
of warning the First Amendment is designed to
protect. Did Holmes actually listen to this?
He did. Later that very same year, in a case
called Abrams v. United States, Holmes dissented.
He switched sides. No way. Yeah, he argued that
the government shouldn't be jailing people for
a silly leaflet by an unknown man. He started
talking about the marketplace of ideas. It's
amazing that the guy who created the weapon to
destroy free speech eventually tried to disarm
it himself. But the phrase stuck anyway. It's
like it's deeper in our culture than the correction.
It is. But smart people have been trying to kill
it for a long time. The late Christopher Hitchens,
who was never one to hold back, had a brilliant
take on this. Oh, I love a good Hitchens rant.
What was his angle? He called the Schenck verdict
fatuous. He pointed out that the socialists opposing
World War I were the real firefighters. They
were the ones shouting fire when there really
was a fire. The fire was the war itself. And
that leads to the ultimate question of censorship.
Who decides? Exactly. Hitchens asked who is to
decide. If the state gets to decide that your
political protest is a false alarm, then the
state can silence any dissent it finds inconvenient
just by labeling it dangerous. This reminds me
of Ken White. He's a well -known First Amendment
attorney who writes under the name Pope Hat.
He calls the fire phrase a red herring. Yes,
Ken White is fantastic on this. He argues that
when people use the fire in a crowded theater
line, they are actively trying to distract you.
They use it to suggest that the First Amendment
is this vague, squishy thing where we just balance
free speech against social harm. But the law
isn't squishy anymore. No, it's not. Under current
law, like cases such as United States v. Stevens,
The exceptions to the First Amendment are historic
and well -defined. We're talking about true threats,
defamation, fraud, incitement. You can't just
invent new exceptions because you think speech
is harmful or hateful. So when someone says you
can't shout fire, they're basically saying, I
wish the law allowed us to ban things I personally
think are bad? Exactly. They are wishing for
a flexibility that the Constitution simply does
not allow. Okay, so we've established it's a
bad analogy, it's bad law, and it's a distraction.
But I have to ask the practical question, because
I know listeners are wondering, can I actually
shout fire in a crowded theater? Like, practically
speaking, if I go to the movies tonight and scream
it, what happens to me? This is where we need
to be really precise. It is not a speech crime
to say the word fire. The First Amendment doesn't
have a list of forbidden words. However... You
are responsible for the consequences of your
actions. So if I yell it and everyone just looks
at me, rolls around and tells me to shut up.
You haven't committed a crime. You might get
kicked out by the manager for being a nuisance,
but you aren't going to jail. But if I do it
falsely, knowing there is no fire and it causes
a panic where someone gets trampled. Then you
are in serious trouble, but not for speech. You
are in trouble for involuntary manslaughter or
at the very least disorderly conduct. Right.
In Colorado, for example, falsely reporting an
emergency is a misdemeanor. But if that report
leads to someone getting seriously hurt or dying,
it upgrades to a felony. So the law focuses on
the fraud and the physical harm, not the words
themselves. Correct. Think of it like fraud.
You can say the words, I have a gold watch. That's
free speech. But if you take my money and give
me a fake watch, you've committed a crime. A
crime isn't the words. It's the theft by deception.
Shouting fire falsely is causing a panic by deception.
And just to be absolutely clear, because we don't
want this deep dive to be cited in a lawsuit
if the theater is on fire. Please, for the love
of everything, shout fire. The law protects you
if you reasonably believe there is a danger.
The myth implies that you can never speak if
it causes a panic. But if the panic is necessary
to get people to the exits, the speech is not
only legal, it's absolutely necessary. It really
circles back to that point Chafee made to Holmes.
The socialists thought the house was burning
down. They thought the draft was the fire. And
that is why the crowded theater analogy is so
dangerous. It frames the status quo as safe and
the dissenter as the danger. But in a healthy
democracy, we need people to be able to say,
hey. I think I smell smoke, even if the government
insists everything is totally fine. We've covered
a lot of ground today. We went from a 1919 draft
protest to a misunderstanding that has lasted
a century. We learned that the clear and present
danger test is dead, replaced by the much stricter
imminent lawless action standard. And we learned
that even the man who wrote the phrase Justice
Holmes eventually realized that comparing political
pamphlets to a death trap was a major mistake.
So the next time you're in a comment section
or at that dinner party and someone plays the
fire in a crowded theater card to shut you down,
you don't have to just take it. You can tell
them it's a red herring. Yeah. You can tell them
that unless they are inciting an immediate riot,
the First Amendment is a lot stronger than they
think. I want to leave you with one final thought
to mull over. We cling to this myth because we
crave safety. We want to believe there's a clear
line where speech becomes too dangerous so we
can stop it. But the history we looked at today,
from Schenek to the tragedies at Italian Hall,
shows us that when we draw those lines too broadly,
we don't just stop the false alarms, we stop
the warnings. We silence the people pointing
at the smoke. And in the marketplace of ideas,
isn't it better to risk a few false alarms than
to burn down with the exits locked? That is the
ultimate question. Who do you trust to decide
when the fire is real? Thanks for joining us
on this deep dive. See you next time.