Fire in a Crowded Theater – Opinion

Note: This “Moore to the Point” commentary aired on NewsTalkSTL on Tuesday, May 17th. Below is audio.

In response to the horrific shooting in Buffalo over the weekend, New York Governor Kathy Hochul issued several statements – which is appropriate under the circumstances. However, in those statements, she echoed a famous analogy — frequently invoked by President Biden — that is overused and generally misunderstood.

The claim that “You’re not allowed to scream fire in a crowded theater” gets several things wrong. You most definitely cannot shout fire in a crowded theater. These are allowed to scream “fire” in a crowded theater if there is, in fact, a fire. Justice Oliver Wendell Holmes’ actual statement in the case Schenck v. United States was: “The most stringent protection of free speech would not protect a man in False shouting fire in a theatre and causing a panic.” (emphasis mine)

Zweiten, Justice Holmes used the analogy in The SchenckThis case was The dictum, meaning it had no binding authority – it was just part of the Justice’s thought process and explanation. In fact, the case had nothing to do with fires or theaters – or even false statements — but was, instead, about a pamphlet opposing the draft.

The third is the SchenckThe case was thrown out by Brandenburg v. OhioIn 1969. (See? The Supreme Court overturning bad decisions is not, in fact, unprecedented – nor unwelcome.)

For the prompt reminder, H/t Nick Arama

About Post Author

Follow Us