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But it's still unclear whether you can shout "movie" in a crowded firehouse

You've all heard, no doubt, that it is illegal to shout "fire" in a crowded theater. But is it true?

Not exactly. This infamous hypothetical originated in Oliver Wendell Holmes' opinion in the case Schenck v. US, 249 U.S. 47 (1919). And, as often happens with this sort of thing, a few key elements of Holmes' formulation got lost on the journey into maxim. Here's what he originally wrote, in discussing the boundary between protected speech and incitement:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.

The conventional wisdom is that

1. shouting "fire";
2. in a crowded theater;
. . . is incitement, and not protected speech.

Yet this omits two elements and a key detail from Holmes' hypo, which stated fully is as follows:

1. shouting "fire";
2. with knowledge that the information is false;
3. in a theater;
4. causing a panic;
. . . is incitement, and not protected speech.

The missing elements are knowledge of falsity and resulting harm. Absent those, you may shout "fire" in a crowded theater with impunity. On the other hand, Holmes does not limit the realm of unprotected speech to "crowded" theaters. He speaks of "theaters," period. So while one does not lose constitutional protection unless one speaks with knowledge of falsity and causes harm, still, if one has done so, he loses protection even in a sparsely occupied theater, under the true constitutional test.

So now you know.

UPDATE 9/29
Justice Douglas, concurring in the much later case of Brandenburg v. Ohio, 395 U.S. 444 (1969), which announced the modern incitement test, wrote:

The line between what is permissible . . . and what may be made impermissible . . . is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution.

It seems that Douglas takes Holmes to mean that speech can only be punished if it results in actual harm, which is how I broke down Holmes' hypo. Perhaps, as explored in the comments, Holmes didn't mean that exactly, but here we are. It has become doctrinal. Indeed, when speech leads to actual harm, Douglas suggests it is the harm that is to be punished, not the speech.

On the other hand, he got it wrong that the theater had to be crowded.

Posted by FLOG at September 28, 2004 9:40 PM