Justice Oliver Wendell Holmes Jr. is widely considered, along with Justice Louis D. Brandeis, to be one of the guardians of the First Amendment. He authored many of the seminal decisions that explained why our country should protect freedom of speech. For example, he first used the terminology “clear and present danger” 100 years ago to help draw the line between protected and unprotected speech in Schenck v. United States (1919).
But Holmes produced another phrase in his Schenck opinion that may be even better known — a phrase deeply enmeshed in our cultural lexicon: “shouting ‘Fire’ in a theatre.” The case involved the prosecution of Charles T. Schenck and Elizabeth Baer for distributing leaflets urging people to refuse to comply with the draft. Schenck, the general secretary of the Socialist Party, opposed U.S. involvement in World War I and believed that conscription was akin to slavery.
In the leaflets, Schenck and Baer mentioned the 13th Amendment to the Constitution, which outlawed slavery and involuntary servitude. In other words, the political dissidents believed that conscription into the armed forces amounted to a form of indentured servitude. The leaflets urged no violence and included the phrase “Assert Your Rights.”
Nevertheless, Justice Holmes affirmed the convictions for a unanimous Supreme Court. He explained:
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting ‘Fire’ in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is question of proximity and degree. i
Holmes explained that in times of war, the government can place greater restrictions on freedom of speech. He strengthened the “clear and present danger” test in his dissenting opinion later that year in Abrams v. United States (1919).
But the most well-known phrase in the above passage, and arguably the whole opinion, remains Holmes’s classic “‘Fire’ in a theatre” language. It is one of the most-often quoted phrases from First Amendment jurisprudence. It has transcended the Supreme Court reports into the normal cultural sphere. For example, years ago when asked by a reporter why he uttered mean things about an opponent, former world heavyweight boxing champion “Iron” Mike Tyson responded, “It’s not like I yelled ‘Fire’ in a theater or something.”
Interestingly, many misquote Holmes’ passage by adding in the adjective “crowded” to make it “shouting ‘Fire’ in a crowded theatre.” Holmes never used the adjective “crowded.”
Perhaps even more ominously, some omit the adverb “falsely” from Holmes’ famous phrase. Obviously, the First Amendment would protect a speaker who truthfully warns of a fire.
David L. Hudson Jr. is a First Amendment Fellow at the Freedom Forum Institute, and a law professor at Belmont University who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment titled, “Freedom of Speech: Understanding the First Amendment” (Now You Know Media, 2018). He also is the author of many First Amendment books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Freedom of Speech: Documents Decoded” (ABC-CLIO, 2017).