WEBVTT 00:00:00.000 --> 00:00:01.919 If you want to shut down an argument about free 00:00:01.919 --> 00:00:05.860 speech, there's basically a cheat code. Oh, absolutely. 00:00:05.879 --> 00:00:09.220 It's this nine word phrase that acts as the ultimate 00:00:09.220 --> 00:00:12.300 mic drop, like the absolute end of the conversation. 00:00:12.460 --> 00:00:14.960 If you spend any time online or watching political 00:00:14.960 --> 00:00:17.960 debates, you have absolutely heard it used to 00:00:17.960 --> 00:00:21.079 justify why certain speech needs to be censored. 00:00:21.199 --> 00:00:23.539 You can't shout fire in a crowded theater. Yeah, 00:00:23.620 --> 00:00:26.260 that is the one. That's exactly it. It is the 00:00:26.260 --> 00:00:28.960 universal go -to analogy when someone wants to 00:00:28.960 --> 00:00:31.640 prove that freedom of speech has obvious common 00:00:31.640 --> 00:00:34.859 sense limits. Right. But what if I told you that 00:00:34.859 --> 00:00:36.780 the Supreme Court justice who originally coined 00:00:36.780 --> 00:00:39.079 that analogy later essentially admitted he was 00:00:39.079 --> 00:00:41.960 wrong? Which is pretty wild to think about. It 00:00:41.960 --> 00:00:45.340 is. Or that the legal ruling it was attached 00:00:45.340 --> 00:00:47.880 to was overturned half a century ago. And on 00:00:47.880 --> 00:00:50.500 top of all of that, the quote itself, the nine 00:00:50.479 --> 00:00:52.859 words we all repeat is completely misstated. 00:00:53.070 --> 00:00:55.609 It really is one of the most persistent legal 00:00:55.609 --> 00:00:58.090 myths in American culture today. Yeah, we use 00:00:58.090 --> 00:01:00.890 this phrase as an undisputed law of nature. I 00:01:00.890 --> 00:01:03.729 mean, almost like gravity. But the actual history 00:01:03.729 --> 00:01:05.409 behind it, which we're pulling from this fascinating 00:01:05.409 --> 00:01:08.450 Wikipedia article today, is a tangled web of 00:01:08.450 --> 00:01:11.790 wartime paranoia, horrifying public tragedies 00:01:11.790 --> 00:01:15.269 and a massive evolution in how the First Amendment 00:01:15.269 --> 00:01:18.349 actually works. So let's dismantle this before 00:01:18.349 --> 00:01:20.629 we even get into the constitutional drama of 00:01:20.629 --> 00:01:22.390 it all. Let's just look at the anatomy of the 00:01:22.390 --> 00:01:24.560 free. itself. Let's do it. Because the words 00:01:24.560 --> 00:01:26.959 we use today are fundamentally different from 00:01:26.959 --> 00:01:29.640 what Justice Oliver Wendell Holmes Jr. actually 00:01:29.640 --> 00:01:33.060 wrote back in his 1919 opinion. They are. The 00:01:33.060 --> 00:01:35.379 popular version we all say today drops a crucial 00:01:35.379 --> 00:01:38.540 word and well it adds another. Holmes originally 00:01:38.540 --> 00:01:40.260 wrote that the First Amendment would not protect 00:01:40.260 --> 00:01:43.450 a man falsely shouting fire in a theater. Falsely. 00:01:43.629 --> 00:01:46.370 Falsely. The popular version completely erases 00:01:46.370 --> 00:01:48.829 that word and then attacks on the word crowded 00:01:48.829 --> 00:01:51.709 for dramatic effect. That erasure completely 00:01:51.709 --> 00:01:53.790 changes the entire reality of the action, doesn't 00:01:53.790 --> 00:01:55.780 it? Oh, fundamentally. It's sort of the legal 00:01:55.780 --> 00:01:58.420 equivalent of discussing a homicide but forgetting 00:01:58.420 --> 00:02:02.000 to mention if it was premeditated murder or like 00:02:02.000 --> 00:02:05.359 self -defense. That one specific condition dictates 00:02:05.359 --> 00:02:07.900 whether a crime has even been committed. Exactly. 00:02:08.159 --> 00:02:11.020 If you drop the word falsely, you are implying 00:02:11.020 --> 00:02:13.639 that the sheer act of saying a word is illegal. 00:02:14.030 --> 00:02:16.490 But if I'm in a theater, crowded or not, and 00:02:16.490 --> 00:02:18.729 I smell smoke and see flames... You're allowed 00:02:18.729 --> 00:02:20.930 to yell fire. I am absolutely allowed to yell 00:02:20.930 --> 00:02:23.310 fire. In fact, I probably should. Right, and 00:02:23.310 --> 00:02:25.789 that is exactly how the law views it. The legal 00:02:25.789 --> 00:02:28.069 issue has never been about the mere utterance 00:02:28.069 --> 00:02:30.780 of a forbidden word. The courts don't care about 00:02:30.780 --> 00:02:32.479 the sound coming out of your mouth. Okay, so 00:02:32.479 --> 00:02:34.460 what do they care about? They care about the 00:02:34.460 --> 00:02:37.340 intent behind the word and the tangible harm 00:02:37.340 --> 00:02:40.020 it causes. Wait, so let's ground this in the 00:02:40.020 --> 00:02:42.159 real world today for a second. If someone decides 00:02:42.159 --> 00:02:45.199 to pull a malicious prank and screams fire in 00:02:45.199 --> 00:02:47.860 a movie theater right now, what is the actual 00:02:47.860 --> 00:02:50.560 legal mechanism that brings them down? It basically 00:02:50.560 --> 00:02:53.060 comes down to criminal liability for creating 00:02:53.060 --> 00:02:56.840 a foreseeable emergency. State laws handle this 00:02:56.840 --> 00:03:00.370 very precisely. Take Colorado. Colorado revised 00:03:00.370 --> 00:03:04.250 statute section 188111, for example. Under that 00:03:04.250 --> 00:03:07.710 specific law, if you knowingly make a false report 00:03:07.710 --> 00:03:10.870 of an emergency, so a deliberate lie designed 00:03:10.870 --> 00:03:14.050 to cause a panic, you are committing a misdemeanor. 00:03:14.270 --> 00:03:17.629 provided it merely causes the occupants to evacuate 00:03:17.629 --> 00:03:20.110 or be displaced. So emptying the building on 00:03:20.110 --> 00:03:21.889 a prank gets you a misdemeanor. That doesn't 00:03:21.889 --> 00:03:24.389 sound too crazy. But watch how the law scales 00:03:24.389 --> 00:03:26.870 with the consequences. It escalates to a felony 00:03:26.870 --> 00:03:29.849 if that false report triggers an emergency response 00:03:29.849 --> 00:03:32.110 that results in the serious bodily injury or 00:03:32.110 --> 00:03:35.150 death of another person. Oh, wow. Yeah. The law 00:03:35.150 --> 00:03:37.780 is designed around foreseeability. Even if you 00:03:37.780 --> 00:03:40.719 just yell the lie and an innocent bystander genuinely 00:03:40.719 --> 00:03:43.479 believes you and dials 911. The bystander calls 00:03:43.479 --> 00:03:45.900 it in, not you. Right, but you are the one held 00:03:45.900 --> 00:03:47.780 criminally responsible for causing that false 00:03:47.780 --> 00:03:49.580 report to be made. Because you set the dominoes 00:03:49.580 --> 00:03:52.000 up, you push the first one, so you own whatever 00:03:52.000 --> 00:03:53.960 gets crushed at the end of the line. Precisely. 00:03:54.400 --> 00:03:56.699 You weaponize human panic. Which brings up a 00:03:56.699 --> 00:03:59.400 really fascinating historical question, I think. 00:03:59.599 --> 00:04:02.539 Unpacking this. Why did Justice Holmes pick this 00:04:02.539 --> 00:04:05.699 specific nightmare in 1919? It's a great question. 00:04:05.860 --> 00:04:08.159 Right. Out of all the ways you could describe 00:04:08.159 --> 00:04:12.439 a dangerous, malicious lie, why focus on a theater 00:04:12.439 --> 00:04:15.759 panic? It feels so incredibly specific, almost 00:04:15.759 --> 00:04:18.759 cinematic. To understand that, you have to look 00:04:18.759 --> 00:04:21.279 at the terrifying reality of the era Holmes was 00:04:21.279 --> 00:04:24.319 living in. In the late 19th and early 20th centuries, 00:04:24.750 --> 00:04:27.610 false shouts of fire in public gathering places 00:04:27.610 --> 00:04:30.930 were not some theoretical legal hypothetical. 00:04:30.949 --> 00:04:33.709 They weren't. No, they were a literal deadly 00:04:33.709 --> 00:04:36.430 epidemic across the country. It sounds like the 00:04:36.430 --> 00:04:38.410 historical equivalent of calling in a bomb threat 00:04:38.410 --> 00:04:41.149 today or like swatting someone, just a malicious 00:04:41.149 --> 00:04:43.589 prank with devastating consequences. Can you 00:04:43.589 --> 00:04:46.790 paint a picture of how bad this was? It was horrifyingly 00:04:46.790 --> 00:04:49.310 common and the death tolls were staggering. And 00:04:49.310 --> 00:04:51.110 it is crucial to understand that it wasn't fire 00:04:51.110 --> 00:04:52.910 killing these people, it was the human crush. 00:04:53.129 --> 00:04:55.829 The stampede. Exactly. There was the Mount Morris 00:04:55.829 --> 00:04:59.310 Theater in Harlem in 1884, where a man was actually 00:04:59.310 --> 00:05:01.769 arrested for shouting during a fire scene on 00:05:01.769 --> 00:05:04.449 stage. Just shouting during the play. Yeah, just 00:05:04.449 --> 00:05:07.050 trying to start a panic. But a much deadlier 00:05:07.050 --> 00:05:09.529 example is the Shiloh Baptist Church in Birmingham, 00:05:09.589 --> 00:05:12.250 Alabama, back in 1902. Okay, what happened there? 00:05:12.290 --> 00:05:14.769 You had a massive crowd of roughly 3 ,000 people 00:05:14.769 --> 00:05:17.209 in there. Wow. and an altercation breaks out 00:05:17.209 --> 00:05:19.089 in the choir, and someone yells, there's a fight. 00:05:19.370 --> 00:05:22.709 OK, a fight. But in this cavernous, echoing building, 00:05:23.189 --> 00:05:27.110 the crowd misheard the word fight as fire. Oh 00:05:27.110 --> 00:05:30.569 my god. Yeah. Over 100 people were trampled and 00:05:30.569 --> 00:05:32.949 crushed to death in the ensuing stampede for 00:05:32.949 --> 00:05:36.110 the doors. Over 100 people dead from a single 00:05:36.110 --> 00:05:39.040 misheard syllable. That is deeply unsettling. 00:05:39.220 --> 00:05:41.540 It really is. Or look at the Cannonsburg Opera 00:05:41.540 --> 00:05:45.000 House in Pennsylvania in 1911. A flash on a screen 00:05:45.000 --> 00:05:48.079 was mistaken for actual flames. Someone yelled 00:05:48.079 --> 00:05:50.839 out and 26 people were crushed to death in a 00:05:50.839 --> 00:05:53.180 stairwell. Just a pile up in the stairs. The 00:05:53.180 --> 00:05:55.699 sheer force of the human tide was so intense 00:05:55.699 --> 00:05:57.920 that one rescuer died on the scene to try to 00:05:57.920 --> 00:06:00.199 pull people out. The human survival instinct 00:06:00.199 --> 00:06:03.139 essentially turns a crowd into a lethal weapon 00:06:03.139 --> 00:06:06.079 against itself. And the tragedies were relentless, 00:06:06.379 --> 00:06:10.250 honestly. On Christmas Eve in 1913 at the Italian 00:06:10.250 --> 00:06:13.110 Hall in Calumet, Michigan, striking mine workers 00:06:13.110 --> 00:06:15.490 and their families were holding a party. Oh, 00:06:15.550 --> 00:06:17.029 I think I've heard of this one. Yeah, someone 00:06:17.029 --> 00:06:20.730 falsely shouted fire into the crowded room. 73 00:06:20.730 --> 00:06:23.509 people, mostly children, were killed in the crush 00:06:23.509 --> 00:06:26.850 to escape down a single narrow stairwell. Mostly 00:06:26.850 --> 00:06:29.769 kids. It's almost unimaginable to think about 00:06:29.769 --> 00:06:32.310 living with that kind of Ambient anxiety like 00:06:32.310 --> 00:06:34.509 every time you step into a crowded room You know 00:06:34.509 --> 00:06:37.889 that one loud idiot could cause a massacre and 00:06:37.889 --> 00:06:40.649 that anxiety fundamentally altered how society 00:06:40.649 --> 00:06:43.689 operated at the time The false shouter actually 00:06:43.689 --> 00:06:46.050 became a recognized stock villain in the popular 00:06:46.050 --> 00:06:48.250 literature of the era. Like a trope representing 00:06:48.250 --> 00:06:51.269 the ultimate foolish or evil behavior. Exactly. 00:06:51.389 --> 00:06:54.230 And this terror warped decision making in catastrophic 00:06:54.230 --> 00:06:57.550 ways. For example, in 1876, a real blaze broke 00:06:57.550 --> 00:06:59.470 out during a performance at the Brooklyn Theater. 00:06:59.610 --> 00:07:02.430 OK, a real fire this time. Right. And the theater 00:07:02.430 --> 00:07:04.990 staff were so paralyzed by the fear of causing 00:07:04.990 --> 00:07:07.709 one of these deadly stampedes that they actively 00:07:07.709 --> 00:07:09.689 tried to hide the flames from the audience. They 00:07:09.689 --> 00:07:11.209 pretended it was just part of the show. Wait, 00:07:11.290 --> 00:07:13.589 wait. So by trying to prevent a hypothetical 00:07:13.589 --> 00:07:16.709 panic, they engineered a very real massacre. 00:07:17.050 --> 00:07:20.009 Yes. Their decision to hide the fire severely 00:07:20.009 --> 00:07:22.850 delayed the evacuation. By the time the crowd 00:07:22.850 --> 00:07:25.050 realized what was happening, it was far too late. 00:07:25.589 --> 00:07:28.370 The death toll was at least 278 people. That 00:07:28.370 --> 00:07:31.029 is a completely lose -lose psychological trap. 00:07:31.449 --> 00:07:33.430 You are either crushed to death by a fake fire 00:07:33.430 --> 00:07:35.709 or you burn alive in a real one because the people 00:07:35.709 --> 00:07:38.170 in charge are too afraid to warn you. And that 00:07:38.170 --> 00:07:41.709 profound societal trauma led to a very swift 00:07:41.709 --> 00:07:44.509 legislative crackdown. Local jurisdictions weren't 00:07:44.509 --> 00:07:46.689 waiting around for philosophical debates on free 00:07:46.689 --> 00:07:50.389 speech. They were passing strict municipal codes 00:07:50.389 --> 00:07:53.920 to stop the bleeding. Like the 1917 Indianapolis 00:07:53.920 --> 00:07:56.740 Municipal Code, which explicitly criminalized 00:07:56.740 --> 00:07:59.079 crying out a false alarm of fire in any church, 00:07:59.579 --> 00:08:01.800 public hall, or moving picture showroom occupied 00:08:01.800 --> 00:08:04.540 by a crowd. So the terror of the theater panic 00:08:04.540 --> 00:08:07.500 was visceral, raw, and universally understood 00:08:07.500 --> 00:08:10.360 by the American public. Absolutely. Which explains 00:08:10.360 --> 00:08:12.920 perfectly how a savvy lawyer could pick up that 00:08:12.920 --> 00:08:15.240 fear and weaponize it. Which takes us to the 00:08:15.240 --> 00:08:18.220 federal courthouse in 1918. Right. This is where 00:08:18.220 --> 00:08:20.920 the history takes a really sharp left turn. So 00:08:20.920 --> 00:08:24.100 it's 1918, World War I is raging, and Eugene 00:08:24.100 --> 00:08:26.800 V. Debs, a prominent socialist leader, is on 00:08:26.800 --> 00:08:29.579 trial in Canton, Ohio. That's the setting. Yep. 00:08:29.939 --> 00:08:32.299 He gave an anti -war speech, and the government 00:08:32.299 --> 00:08:35.620 charged him under the Espionage Act. His entire 00:08:35.620 --> 00:08:38.809 defense hinges on the First Amendment. He is 00:08:38.809 --> 00:08:41.129 arguing that the Constitution guarantees his 00:08:41.129 --> 00:08:43.009 right to criticize the government and oppose 00:08:43.009 --> 00:08:45.470 the war. And here is the historical twist that 00:08:45.470 --> 00:08:48.309 most people do not know. Justice Holmes did not 00:08:48.309 --> 00:08:50.870 invent the theater analogy. He didn't. No, it 00:08:50.870 --> 00:08:53.830 was birthed in this specific trial by the federal 00:08:53.830 --> 00:08:57.250 prosecutor, a man named Edwin Wirtz. Wait, really? 00:08:57.730 --> 00:09:00.090 A prosecutor trying to lock up a political dissident 00:09:00.090 --> 00:09:02.769 invented the phrase? He did. Wirtz needed a way 00:09:02.769 --> 00:09:05.779 to shatter Debs's constitutional defense. So 00:09:05.779 --> 00:09:08.440 in his closing rebuttal, Wirtz looked at the 00:09:08.440 --> 00:09:11.460 jury and invoked the horror of those recent theater 00:09:11.460 --> 00:09:13.220 stampedes we just talked about. That's clever. 00:09:13.860 --> 00:09:16.899 Very. He argued that a man in a crowded auditorium 00:09:16.899 --> 00:09:19.440 who yells fire when there is no fire, causing 00:09:19.440 --> 00:09:21.960 a fatal panic, could rightfully be sent to the 00:09:21.960 --> 00:09:23.899 electric chair. Okay, establishing the premise. 00:09:24.240 --> 00:09:26.919 Then Wirtz essentially told the jury, according 00:09:26.919 --> 00:09:30.440 to Eugene V. Debs's theory of free speech, that 00:09:30.440 --> 00:09:33.620 man shouldn't be punished. Oh wow. That is an 00:09:33.620 --> 00:09:37.179 incredibly manipulative rhetorical leap. Wirtz 00:09:37.179 --> 00:09:40.039 is taking a localized physical safety hazard 00:09:40.039 --> 00:09:42.220 like people literally being crushed to death 00:09:42.220 --> 00:09:44.679 by a mob and mapping it directly onto political 00:09:44.679 --> 00:09:47.259 speech. He is. He's saying that criticizing the 00:09:47.259 --> 00:09:49.840 military draft is mathematically equivalent to 00:09:49.840 --> 00:09:52.419 triggering a fatal stampede. And it was highly 00:09:52.419 --> 00:09:55.250 effective manipulation. Yeah. And if we connect 00:09:55.250 --> 00:09:57.850 this to the bigger picture, historians actually 00:09:57.850 --> 00:10:00.149 believe that Justice Oliver Wendell Holmes Jr. 00:10:00.549 --> 00:10:02.830 read Wirtz's closing argument while preparing 00:10:02.830 --> 00:10:05.330 his own legal opinions. Oh, so he lifted it. 00:10:05.450 --> 00:10:09.110 Because the very next year, in 1919, Holmes adopted 00:10:09.110 --> 00:10:12.029 that exact analogy for a monumental Supreme Court 00:10:12.029 --> 00:10:15.350 case, Schenck v. United States. OK, Charles Schenck. 00:10:15.490 --> 00:10:17.230 He was another anti -war activist, right? Remind 00:10:17.230 --> 00:10:19.330 me, what was his specific crime? Schenck was 00:10:19.330 --> 00:10:21.230 the general secretary of the Socialist Party. 00:10:21.360 --> 00:10:24.100 and he was convicted under the Espionage Act 00:10:24.100 --> 00:10:28.159 for distributing flyers. Just flyers? Yes. These 00:10:28.159 --> 00:10:30.740 flyers urged young men to resist the military 00:10:30.740 --> 00:10:33.580 draft, arguing that conscription was a form of 00:10:33.580 --> 00:10:36.320 involuntary servitude, which is prohibited by 00:10:36.320 --> 00:10:39.139 the 13th Amendment. Handing out flyers, that's 00:10:39.139 --> 00:10:42.659 the crime. Yep. Holmes, writing for a unanimous 00:10:42.659 --> 00:10:46.549 Supreme Court, upheld Schenck's conviction. He 00:10:46.549 --> 00:10:49.090 established what became known as the Clear and 00:10:49.090 --> 00:10:52.129 Present Danger Test. Okay, the famous test. Holmes 00:10:52.129 --> 00:10:54.029 argued that the government could punish speech 00:10:54.029 --> 00:10:56.789 if the words used created a clear and present 00:10:56.789 --> 00:10:59.470 danger that they would bring about substantive 00:10:59.470 --> 00:11:01.370 evils the government has a right to prevent. 00:11:01.769 --> 00:11:04.929 in this case, disrupting the military draft during 00:11:04.929 --> 00:11:06.870 wartime. And this is the exact moment he drops 00:11:06.870 --> 00:11:09.870 the mic with the quote, isn't it? Yes. To justify 00:11:09.870 --> 00:11:12.289 locking Schenck up for distributing pamphlets, 00:11:12.610 --> 00:11:15.070 Holmes famously wrote, the most stringent protection 00:11:15.070 --> 00:11:17.110 of free speech would not protect a man falsely 00:11:17.110 --> 00:11:19.509 shouting fire in a theater and causing a panic. 00:11:19.610 --> 00:11:21.850 Hold on, let me push back on this because how 00:11:21.850 --> 00:11:24.789 does a flyer equal a stampede? That's the million 00:11:24.789 --> 00:11:26.789 dollar question. You can throw a piece of paper 00:11:26.789 --> 00:11:28.889 in the trash. You can read it, disagree with 00:11:28.889 --> 00:11:31.929 it, and walk away. You cannot ignore a mob of 00:11:31.929 --> 00:11:34.009 hundreds of terrified people crushing you against 00:11:34.009 --> 00:11:36.750 a door. The imminence and the physical reality 00:11:36.750 --> 00:11:39.409 are just completely different. Did anyone at 00:11:39.409 --> 00:11:42.049 the time at the Supreme Court call out this false 00:11:42.049 --> 00:11:45.070 equivalence? Someone did realize it. In fact, 00:11:45.240 --> 00:11:47.980 What's fascinating here is the person who ultimately 00:11:47.980 --> 00:11:51.019 dismantled the logic of that ruling was Justice 00:11:51.019 --> 00:11:53.500 Holmes himself. Wait, what? The man who wrote 00:11:53.500 --> 00:11:55.620 the opinion turned against his own logic. He 00:11:55.620 --> 00:11:58.360 did. Legal historians note that Holmes faced 00:11:58.360 --> 00:12:01.399 intense, blistering criticism from free speech 00:12:01.399 --> 00:12:04.379 advocates immediately after the Schenck decision. 00:12:05.100 --> 00:12:07.539 But the turning point was an intellectual intervention, 00:12:07.860 --> 00:12:10.679 really. Holmes met with a brilliant legal scholar 00:12:10.679 --> 00:12:13.539 named Zachariah Chafee, who had recently published 00:12:13.539 --> 00:12:15.759 a very influential article in the Harvard Law 00:12:15.759 --> 00:12:18.659 Review titled, Freedom of Speech in Wartime. 00:12:18.899 --> 00:12:21.519 What was Chafee's counter argument? Because how 00:12:21.519 --> 00:12:24.100 do you dismantle an analogy that is emotionally 00:12:24.100 --> 00:12:26.980 powerful? Chafee dismantled it by pointing out 00:12:26.980 --> 00:12:29.480 that political dissent is fundamentally different 00:12:29.480 --> 00:12:32.669 from a malicious false alarm. He told Holmes 00:12:32.669 --> 00:12:35.210 that a much more accurate analogy for Charles 00:12:35.210 --> 00:12:38.230 Shank handing out anti -war flyers wasn't a man 00:12:38.230 --> 00:12:40.850 falsely shouting fire to cause a panic. Okay. 00:12:41.250 --> 00:12:43.129 A better analogy was a man who stands up in a 00:12:43.129 --> 00:12:45.190 crowded theater to warn the audience that the 00:12:45.190 --> 00:12:47.070 building doesn't have enough fire exits. Oh, 00:12:47.110 --> 00:12:49.610 I love that. That completely inverts the entire 00:12:49.610 --> 00:12:51.809 premise. It does, doesn't it? Warning people 00:12:51.809 --> 00:12:54.509 about a structural flaw is the exact opposite 00:12:54.509 --> 00:12:57.399 of creating a hazard. Schenck wasn't starting 00:12:57.399 --> 00:12:59.759 a fire. He was trying to tell the public that 00:12:59.759 --> 00:13:01.919 the war machine was a burning building and they 00:13:01.919 --> 00:13:04.679 were all locked inside. And that intellectual 00:13:04.679 --> 00:13:08.379 framing profoundly affected Holmes. I mean, it 00:13:08.379 --> 00:13:10.480 requires an incredible amount of humility for 00:13:10.480 --> 00:13:13.000 sitting Supreme Court justice to recognize a 00:13:13.000 --> 00:13:14.940 flaw in their own landmark ruling. But Holmes 00:13:14.940 --> 00:13:18.620 did. That's rare. Very rare. Later that same 00:13:18.620 --> 00:13:21.240 year... In a case called Abrams v. United States, 00:13:21.759 --> 00:13:24.200 the government was deporting activists for distributing 00:13:24.200 --> 00:13:26.620 flyers opposing U .S. military intervention in 00:13:26.620 --> 00:13:28.879 the Russian Revolution. Another flyer case under 00:13:28.879 --> 00:13:31.899 the Espionage Act. Did Holmes use the clear and 00:13:31.899 --> 00:13:34.419 present danger test again? He completely flipped. 00:13:34.860 --> 00:13:37.320 Yeah. Holmes joined the minority dissent. He 00:13:37.320 --> 00:13:40.320 completely abandoned his previous hardline stance, 00:13:40.840 --> 00:13:43.399 writing that the government had no business prosecuting 00:13:43.399 --> 00:13:47.419 a quote, silly leaflet by an unknown man. Wow. 00:13:47.679 --> 00:13:50.159 He began arguing for a much broader, much more 00:13:50.159 --> 00:13:52.320 robust interpretation of the First Amendment, 00:13:52.879 --> 00:13:55.720 advocating for a free trade in ideas. But the 00:13:55.720 --> 00:13:57.639 damage was already done. The phrase was out in 00:13:57.639 --> 00:14:00.259 the wild. Very much so. Though, if you are listening 00:14:00.259 --> 00:14:02.820 to this right now and thinking, wait, I've definitely 00:14:02.820 --> 00:14:04.899 used that theater line to win an argument, don't 00:14:04.899 --> 00:14:07.100 worry, it happens. But here's where it gets really 00:14:07.100 --> 00:14:10.059 interesting. You should know that the legal ruling 00:14:10.059 --> 00:14:12.740 that birthed that phrase isn't even the law of 00:14:12.740 --> 00:14:14.700 the land anymore. That is the greatest irony 00:14:14.700 --> 00:14:17.299 of all. The First Amendment holding in shank 00:14:17.299 --> 00:14:20.539 was functionally overturned in 1969 by the Supreme 00:14:20.539 --> 00:14:23.259 Court case, Brandenburg v. Ohio. So it's gone. 00:14:23.659 --> 00:14:25.759 The clear and present danger test that Holmes 00:14:25.759 --> 00:14:28.919 created is dead. So how does the government actually 00:14:28.919 --> 00:14:32.500 measure when speech becomes a crime today? What 00:14:32.500 --> 00:14:35.639 is the modern standard if it's not Holmes' test? 00:14:36.159 --> 00:14:38.320 The modern standard is the Brandenburg test. 00:14:39.000 --> 00:14:41.500 Under Brandenburg, the government cannot punish 00:14:41.500 --> 00:14:45.099 inflammatory speech unless that speech is directed 00:14:45.099 --> 00:14:49.179 to inciting or producing imminent lawless action 00:14:49.179 --> 00:14:51.940 and is likely to incite or produce such action. 00:14:52.139 --> 00:14:54.340 Imminent lawless action. The word imminent does 00:14:54.340 --> 00:14:56.019 a lot of heavy lifting there. Oh, it does all 00:14:56.019 --> 00:14:58.139 the heavy lifting. The courts now have to ask, 00:14:58.600 --> 00:15:00.740 is this speech a match being thrown directly 00:15:00.740 --> 00:15:02.860 into a puddle of gasoline or is it just someone 00:15:02.860 --> 00:15:05.120 yelling at a brick wall? Right. Imminence means 00:15:05.120 --> 00:15:07.740 the violence has to be a split second away. If 00:15:07.740 --> 00:15:09.720 a speaker stands outside a courthouse and tells 00:15:09.720 --> 00:15:12.659 an angry armed mob, burn it down right now, that 00:15:12.659 --> 00:15:15.519 fails the Brandenburg test, the danger is imminent 00:15:15.519 --> 00:15:17.600 and likely. Okay, that makes sense. But if someone 00:15:17.600 --> 00:15:20.000 hands out a flyer that says, we should rise up 00:15:20.000 --> 00:15:22.639 and overthrow the government someday, that is 00:15:22.639 --> 00:15:26.000 protected speech. Because someday isn't imminent. 00:15:26.419 --> 00:15:29.240 Handing out an anti -war flyer like Charles Schenck 00:15:29.240 --> 00:15:32.279 did wouldn't even come close to failing the Brandenburg 00:15:32.279 --> 00:15:35.730 test today. Not even close. Furthermore, legal 00:15:35.730 --> 00:15:38.049 scholars point out another layer of absurdity 00:15:38.049 --> 00:15:40.830 here. The original quote from Holmes about the 00:15:40.830 --> 00:15:43.470 theater wasn't even establishing a binding legal 00:15:43.470 --> 00:15:46.129 rule. It wasn't. Oh, it's what lawyers call dictum. 00:15:46.490 --> 00:15:48.850 It was just a rhetorical flourish. You know, 00:15:49.009 --> 00:15:51.210 a hypothetical illustration used to color an 00:15:51.210 --> 00:15:53.690 opinion. It was never actual case law regarding 00:15:53.690 --> 00:15:56.429 theaters. So just to synthesize this incredibly 00:15:56.429 --> 00:16:00.259 wild trajectory. The phrase is based on a hypothetical, 00:16:00.659 --> 00:16:02.960 non -binding illustration from a case that was 00:16:02.960 --> 00:16:05.519 overturned 50 years ago written by a judge who 00:16:05.519 --> 00:16:07.620 later publicly changed his mind about his own 00:16:07.620 --> 00:16:10.539 logic. Yep, that's the reality. And yet it remains 00:16:10.539 --> 00:16:13.379 the absolute number one cliche we use today to 00:16:13.379 --> 00:16:16.799 justify censoring speech we don't like. It stubbornly 00:16:16.799 --> 00:16:20.100 refuses to die. Which brings us to how the phrase 00:16:20.100 --> 00:16:23.960 is misused in modern discourse. Ken White, a 00:16:23.960 --> 00:16:25.919 prominent First Amendment attorney who runs the 00:16:25.919 --> 00:16:28.399 Poppy Hat blog, has a brilliant perspective on 00:16:28.399 --> 00:16:31.419 this. He calls the theater analogy a red herring. 00:16:31.679 --> 00:16:34.559 A distraction from the actual law. Exactly. When 00:16:34.559 --> 00:16:37.460 people use the crowded theater line today, they 00:16:37.460 --> 00:16:40.279 use it to bypass the actual narrowly defined 00:16:40.279 --> 00:16:43.250 exceptions to the First Amendment. The Supreme 00:16:43.250 --> 00:16:46.070 Court has been very clear in cases like United 00:16:46.070 --> 00:16:49.370 States v. Stevens, which dealt with laws banning 00:16:49.370 --> 00:16:52.049 depictions of animal cruelty, that the categories 00:16:52.049 --> 00:16:54.409 of unprotected speech are historically narrow 00:16:54.409 --> 00:16:57.169 and extremely well -defined. Like what? We're 00:16:57.169 --> 00:16:59.429 talking about very specific things like true 00:16:59.429 --> 00:17:02.769 threats, obscenity, or defamation. So the government 00:17:02.769 --> 00:17:05.309 can't just ban a category of speech because a 00:17:05.309 --> 00:17:08.470 politician decides it lacks value or is just 00:17:08.470 --> 00:17:11.759 generally harmful to society. Right. But making 00:17:11.759 --> 00:17:14.500 a rigorous constitutional argument about why 00:17:14.500 --> 00:17:16.519 specific speech falls into one of those narrow 00:17:16.519 --> 00:17:19.740 categories is hard work. It requires legal nuance. 00:17:19.980 --> 00:17:22.460 And the theater analogy is a lazy shortcut. Totally. 00:17:22.720 --> 00:17:25.099 It's a way to quickly shut down a debate without 00:17:25.099 --> 00:17:27.140 having to do the hard work of proving actual 00:17:27.140 --> 00:17:29.819 imminent harm. It basically functions as a thought 00:17:29.819 --> 00:17:31.900 -terminating cliche. You drop the theater line 00:17:31.900 --> 00:17:33.680 and the intellectual part of the argument just 00:17:33.680 --> 00:17:36.359 stops. Which reminds me of a fantastic moment 00:17:36.359 --> 00:17:39.519 from a debate back in 2006 involving the late 00:17:39.519 --> 00:17:42.740 writer Christopher Hitchens. Hitchens was aggressively 00:17:42.740 --> 00:17:45.539 defending absolute free speech. He walks up to 00:17:45.539 --> 00:17:47.920 the podium to give his opening remarks, looks 00:17:47.920 --> 00:17:50.839 at the audience and literally shouts, fire, fire, 00:17:51.000 --> 00:17:54.380 fire. Now you heard it. It was a brilliantly 00:17:54.380 --> 00:17:57.259 theatrical parody of Holmes's judgment, which 00:17:57.259 --> 00:18:00.299 Hitchens openly condemned as a, quote, fatuous 00:18:00.299 --> 00:18:03.539 verdict. But Hitchens used that theatrical stunt 00:18:03.539 --> 00:18:06.819 to make a much deeper, more profound point about 00:18:06.819 --> 00:18:08.619 the people the Supreme Court was actually throwing 00:18:08.619 --> 00:18:11.640 in prison during World War I. Right, the Yiddish 00:18:11.640 --> 00:18:14.539 -speaking socialists and the anti -draft protesters. 00:18:14.880 --> 00:18:17.079 Hitchens argued that those protesters, the shanks 00:18:17.079 --> 00:18:19.819 and the depses of the world, were the real firefighters. 00:18:19.980 --> 00:18:22.279 They were shouting fire because, in their view, 00:18:22.299 --> 00:18:24.980 there was a massive, deadly conflagration raging 00:18:24.980 --> 00:18:27.339 around them. The mechanized slaughter of World 00:18:27.339 --> 00:18:29.420 War I. Yeah. And they felt the American public 00:18:29.420 --> 00:18:31.279 was trapped inside of... very crowded theater 00:18:31.279 --> 00:18:34.279 with no way out. Hitchens then posed the ultimate 00:18:34.279 --> 00:18:36.160 devastating question about the First Amendment 00:18:36.160 --> 00:18:40.079 and who is to decide. Who is to decide? That 00:18:40.079 --> 00:18:43.019 question really exposes the danger of the analogy, 00:18:43.079 --> 00:18:45.240 doesn't it? It really does. Because if you trace 00:18:45.240 --> 00:18:47.380 the history we've just covered, you see exactly 00:18:47.380 --> 00:18:51.119 how power operates. The state took a very real, 00:18:51.440 --> 00:18:54.119 very terrifying physical safety hazard, being 00:18:54.119 --> 00:18:56.980 literally crushed to death in a burning building, 00:18:57.400 --> 00:19:01.079 and they weaponized that fear. to police political 00:19:01.079 --> 00:19:03.500 thought. Exactly. They took a fear of physical 00:19:03.500 --> 00:19:06.240 harm and mapped it onto a fear of political dissent 00:19:06.240 --> 00:19:08.519 to protect themselves from criticism. And granting 00:19:08.519 --> 00:19:10.599 any government the authority to make that mapping 00:19:10.599 --> 00:19:13.240 is incredibly dangerous. Once you allow the state 00:19:13.240 --> 00:19:15.980 to define political criticism as a false alarm, 00:19:16.420 --> 00:19:18.519 you give them the power to silence whoever is 00:19:18.519 --> 00:19:20.559 pointing out the flames. So we have traveled 00:19:20.559 --> 00:19:22.859 quite a distance on this deep drive today. We 00:19:22.859 --> 00:19:25.319 started with the grim reality of 19th century 00:19:25.319 --> 00:19:28.019 theater panics where hundreds of people died 00:19:28.019 --> 00:19:30.809 over misheard words. Tragic. We saw a federal 00:19:30.809 --> 00:19:33.190 prosecutor take that raw public trauma and turn 00:19:33.190 --> 00:19:35.369 it into a courtroom trick to lock up a socialist. 00:19:35.549 --> 00:19:38.470 We watched Justice Holmes elevate that trick 00:19:38.470 --> 00:19:40.849 to the Supreme Court only to realize he had made 00:19:40.849 --> 00:19:42.950 a terrible mistake after a conversation about 00:19:42.950 --> 00:19:46.970 fire exits. A huge realization. And we saw how 00:19:46.970 --> 00:19:50.089 the law evolved far beyond that 1919 ruling, 00:19:50.390 --> 00:19:53.609 even while our cultural vocabulary stubbornly 00:19:53.609 --> 00:19:56.029 stayed behind. If we pull this all into the present 00:19:56.029 --> 00:19:58.029 moment, I think there's a really important takeaway 00:19:58.029 --> 00:20:01.599 here. The internet is our modern crowded theater, 00:20:01.599 --> 00:20:05.539 and it spans the entire globe. Our contemporary 00:20:05.539 --> 00:20:08.440 panics are digital, they are viral, and they 00:20:08.440 --> 00:20:10.799 move at the speed of light. That's so true. The 00:20:10.799 --> 00:20:12.859 physical walls of the opera houses are gone, 00:20:12.900 --> 00:20:16.240 but the human instinct to stampede remains exactly 00:20:16.240 --> 00:20:19.619 the same. When the government or a tech platform 00:20:19.619 --> 00:20:21.960 or a crowd tries to censor a voice by claiming 00:20:21.960 --> 00:20:24.400 they are shouting fire, we have to pause and 00:20:24.400 --> 00:20:27.240 ask ourselves, who gets to decide what is a malicious 00:20:27.240 --> 00:20:29.759 false alarm? and who is simply a firefighter 00:20:29.759 --> 00:20:31.759 warning us that the building is structurally 00:20:31.759 --> 00:20:34.000 flawed? That is a phenomenal question to keep 00:20:34.000 --> 00:20:35.980 in mind the next time you see someone drop that 00:20:35.980 --> 00:20:38.859 nine -word cheat code into a debate. Thank you 00:20:38.859 --> 00:20:41.200 for joining us on this deep dive. Keep questioning 00:20:41.200 --> 00:20:43.039 the phrases you hear every day, and we'll see 00:20:43.039 --> 00:20:43.440 you next time.