When George smells smoke coming from the kitchen during the birthday party for his girlfriend Robin’s son, he starts screaming “Fire!” and runs out of the building. Pushing everyone in sight, and stepping on Robin’s mother’s arm notwithstanding, could George get in trouble for screaming “fire!” in a crowded area?
Shouting fire in a crowded theatre, as a limit on the free speech rights afforded by the First Amendment, has become sort of a catch phrase in the colloquial understanding of what kinds of speech could be considered illegal even given an expansive interpretation of the First Amendment. But the legal history behind this idea is not as well known. By way of background, the Supreme Court ruled in 1919 in Schenck v. United States, that certain criticisms of the military draft could be criminalized if they presented a clear and present danger of succeeding – i.e. causing people to dodge the draft. The critical quote from Justice Oliver Wendell Holmes’ majority opinion is as follows: “Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances a to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent.” Or, in non-legalese, the Court ruled that there is no general problem with speech that criticizes the draft, or generally talks about criminal activity. However, if that speech creates a “clear and present danger” of actually resulting in criminal activity, specifically in this case, draft dodging, then that speech is not protected by the First Amendment.
The most famous line from Justice Holmes’ decision though is “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” The legal implications of this line are not immediately clear, as Holme’s does not fully address what he means by this line in his decision. But his point has seeped into the general consciousness that there are certain kinds of speech, those that are likely to create a dangerous situation, that fall outside the bounds of the First Amendment.
It’s not so hard to imagine what his concern might be:
The Schenk holding of “clear and present danger” though was later deemed an antiquated notion in the 1969 decision of Brandenburg v. Ohio, which is now the legal standard for what kinds of speech are not protected by the First Amendment. (Longtime readers will remember that we’ve written about this case before for “The Yada Yada.”) Brandenburg found that “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The “imminent lawless action” standard is far less restrictive of speech than Holmes’ 1919 opinion, and instead demands that there be clear intent to incite or produce lawless action, as well as an imminency factor, before the speech can be considered illegal.
So how does this affect George? Well under the Brandenburg decision, it is almost certain that he would not be in trouble for shouting “Fire!” at the party. His speech was not directed to inciting imminent lawless action, even if George himself may have knocked a woman or child down in his own mad panic. As he so eloquently puts it “And when I ran out that door, I was not leaving anyone behind! Oh, quite the contrary! I risked my life making sure that exit was clear. Any other questions?” George’s intent was to lead everyone to safety, and it’s clear that under the Brandenburg standard his speech would not rise to the level of directing imminent lawless action.
But even under Holmes’ standard, it’s not immediately clear that George would be in trouble, despite the Justice’s famous phrase. While Eric the Clown was able to easily put out the fire with his giant shoe, George genuinely believed that there was an inferno in the kitchen that put everyone in danger.. When he shouted “Fire!” he did so with the intent of warning everyone that there was a danger, not to advocate for criminal activity.
Only in a topsy-turvy world could George’s heroic words be cast as outside the bounds of the First Amendment.