Monday, May 26, 2014

Fire in a Crowded Theater

It's Time to Stop Using the 'Fire in a Crowded Theater' Quote

I came across the above article while searching for something only vaguely related. I am highlighting it here because the common misquote of Justice Oliver Wendell Holmes' majority opinion in Schenk v. United States has been a bit of a sore spot with me for years. What Holmes actually wrote was:

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.

This is most often misquoted as simply. "You cannot shout fire in a crowded theater" and is so thoroughly embedded in American rhetoric that some people seem to think it has the force of law behind it. In reality, it was just part of a bad First Amendment decision that has been misinterpreted for decades and was effectively undone by Brandenburg v Ohio over 40 years ago (1969).

I doubt people are going to stop using the misquote when it serves their agenda. However, now you know that they don't know what they are talking about.

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