Jim Bassett's Weblog

I always cringe when someone uses the "free speach doesn't give you the right to shout fire in a crowded theatre" argument. Someone used this today on Metafilter, and as I clicked through to the comments I was hoping someone would have already set the record straight. Score one for the bloggers:

That quote was from an opinion (Schenck v. U.S.) by Jusice Oliver Wendell Holmes. (Holmes later backpedaled from this idea, creating the "marketplace of ideas" concept in his equally-famous dissent in Abrams v. U.S.)

The "fire in a crowded theater" test, also known as the "clear and present danger" test, was used to justify the conviction, under the Espionage Act, of a socialist protester for distributing leaflets protesting the draft for Americans in the first World War. The leaflet allegedly endangered the war effort.

I think it's pretty clear today that the ideas contained in that leaflet fall squarely within the bounds of First Amendment protection. But even though Holmes later changed his mind, hindsight shows that the government was clearly wrong, the "fire" quote is used to justify all sorts of restrictions on speech today.

posted by mikewas at 8:34 AM PST on August 1

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"... Jim Bassett's Weblog ..."

"... free speech? Somebody used that phrase recently on an MIT mailing list, and I remembered something I had heard in 6.805 about the origins of the phrase. It's actually one of the most misused phrases... but you'll understand more after you check out this web page (I realized I hadn't been linking to enough blogs recently). ..."