‘The most famous and pervasive lazy cheat in American dialogue about free speech’

Oliver Wendell Holmes gave us the phrase about shouting fire in a crowded theater. Most people are against such shouting, despite today’s audiences being more likely to look around with irritated curiosity than to panic. Pulling the fire alarm in a crowded theater would cause a problem, and this censorship of free expression is the law. (Why can’t you pull a fire alarm to express yourself? Why can’t you call 911 to talk to give your opinion? Is this 1984?)

Here’s what Justice Holmes actually wrote. “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

He gave this opinion in support of the Supreme Court’s conviction of Charles Schenck, the Secretary of the Socialist Party of America, for writing a pamphlet in opposition to the WWI draft. Two similar cases came up that year and were decided the same way. Calls to “assert your rights” were compared to inciting panic in entertainment houses.

Back in 2012, Trevor Timm wrote about how abused the shouting-fire phrase has become and how much damage it has done to America’s concept of free speech. “Its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, ‘the most famous and pervasive lazy cheat in American dialogue about free speech.'”

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