On the freedom to shout fire in a crowded theatre

Justice Oliver Wendell Holmes on the use and abuse of that quote.

‘There is no freedom to shout fire in a crowded theatre.’ That quote, no, that mis-quote, has been the bane of my death. Any half-baked liberal unable to stomach the prospect of someone espousing a view he doesn’t like, or two-nickel senator with a censor’s axe to grind, uses it as proof positive that there ought to be limits to freedom of speech. Just listen to this from some Brit politician called David Miliband when he banned Geert Wilders, a Dutch politician and anti-Islam obsessive, from entering the UK in 2009: ‘We have a profound commitment to freedom of speech, but there is no freedom to cry “fire” in a crowded theatre and there is no freedom to stir up hate, religious and racial hatred.’

‘No freedom to cry “fire” in a crowded theatre’, and therefore no freedom to be really critical of a religion, no freedom to hold racist views. That’s the logic right there. And it’s my fault because way back in 1919, in Schenck v United States, I said: ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.’ But there was a context, there was a reason for me saying what I said, and, to be honest, there was a great deal of regret, too. So what happened?

In the summer of 1917, the US, having just entered the First World War, passed the Conscription Act. Not everyone was overjoyed, as you can well imagine. There were some, such as Charles Schenck, the secretary of the Socialist Party, who were utterly against being legally compelled to fight in a war they vehemently opposed. So Schenk and his socialist comrades did something about it: they mailed out 15,000 leaflets denouncing conscription to those eligible for the draft. ‘If you do not assert and support your rights’, read the leaflet, ‘you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain’. Hardly inflammatory, if you pardon the crowded-theatre pun. Needless to say, Schenck’s arguments did not go down too well with the US state; he was charged and convicted under the 1917 Espionage Act.

Schenk, however, was a determined fellow, and he countered insisting that in campaigning against the draft he was merely asserting his First Amendment right to speak freely on a public issue, namely conscription. In 1919, the appeal went before the US Supreme Court, and in doing so, I got the chance to pronounce my own verdict on the Schenck case. In short, I, to the benefit, it seems, of every thoughtless violator of free speech, upheld the verdict. This is what I said:

‘[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… 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.’

And with that, it wasn’t just Schenck that was done for; it was freedom of thought, of speech and expression, too. Or was it?

Just look at what I actually said. ‘In many places and in ordinary times’, what the defendants published would have been permitted, ‘it would have been within their constitutional rights’. But, for good or ill, I didn’t see 1917 as an ordinary time. I saw it as an extraordinary time. I saw it as a time of war. And as such, the normal rules, the normal limits on state power, did not apply.

Now just think what that means for that blasted theatre analogy, which haunts my death like a waking dream. I never said that shouting fire was the problem, or better still, falsely shouting fire. No, what made ‘falsely shouting fire’ a free-speech act too far was the context, the time and place: namely, ‘the theatre’. Or, if you need me to spell it out, ‘the theatre of war’.

But if you abuse the exact analogy as I conceived it - if you remove a word, and add another, and if you empty what I said of its historical content - then it changes its meaning. It ceases to be a prohibition issued in a state of exception, a state of war, and becomes a prohibition issued routinely, in a state of peace. It becomes a truism, a platitude for the intellectually lazy, a way of saying that there are simply some things one can’t say because people will respond instinctively, automatically, unthinkingly. I’m sure that’s why in the retelling, my theatre has become a ‘crowded’ theatre – it speaks of the crowd to be inflamed, the mob to be inspired.

But not only did I never mean for my words and sentiments to be taken this way, I worry about their rectitude, too. Perhaps my personal views of war, of the need to fight, entered into the judgement. I was certainly no friend of pacifism having known through my experiences during the Civil War of what it was to feel the need to fight, of knowing that sometimes there is no position outside the fray. As I put it in an 1884 Memorial Day address to my fellow Civil War veterans in 1884: ‘Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing.’ ‘Touched with fire.’ That is how I thought of being prepared to lay down your life for something you believed in – as a life-enhancing experience, not as a life-destroying one. ‘It is required of a man that he should share the passion and action of his time at peril of being judged never to have lived’, I wrote elsewhere.

As I told my good friend Zechariah Chafee, a lawyer and philosopher, I was concerned about my judgement in Schenck v United States. After all, I was effectively saying that it was the prerogative of the state to suspend the rule of law, and with it the principle of an individual’s liberty, including their First Amendment rights.

So perhaps it was with Schenck in mind that I dissented in future cases in which the same issues were at play. In a case a few months after Schenck, Abrams vs United States, I objected to the court’s decision to send Russian immigrants to jail because they had distributed leaflets attacking America’s decision to send troops to Russia. ‘The ultimate good desired is better reached by free trade in ideas’, I said, ‘that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out’.

And, in 1929, I defended free speech again in the case of Hungarian Rosika Schwimmer who, like Schenck, was a pacifist who refused to take the oath of allegiance to become a naturalised US citizen on the grounds that she would never take up arms in defence of her country. These words of mine ought to ring through the ages: ‘Some of her [views] might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.’

Do you know what, if there were a sentence or sentiment I would like to be remembered for, it is not that dubious, almost throwaway analogy about falsely shouting fire in a theatre; it is my judgement in Schwimmer v United States. What matters when defending free speech, you see, is not defending it for those who agree with us but defending it for those whose views we hate.

As told to Tim Black.

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