How To Yell 'Fire' in a Crowded Theater

At a July hearing of the House Select Subcommittee on the Weaponization of the Federal Government, Republican members focused on social media companies' moderation of largely conservative viewpoints and accused the Biden administration of working hand-in-hand with tech companies to censor critics.

The First Amendment generally restricts the actions of the government and not purely private decisions of companies. A spirited, and unsettled, debate is emerging nationwide as to the extent of government pressure on platforms that should render a moderation decision a First Amendment violation.

But some members of the Weaponization Subcommittee sought to minimize the concerns about moderation without engaging in a nuanced discussion about government pressure, or "jawboning."

"I'm an attorney by training, and one of the things I learned very early on in constitutional law is that no right given to the people of the United States is absolute," Rep. Linda Sánchez (D–Calif.) said when asking a witness about the harms of health misinformation. "And that includes the right to free speech because you do not have the right to shout fire in a crowded theater, because it could produce harm and death of people by being false."

Fire in a crowded theater. If you're discussing whether U.S. law should protect allegedly false speech, there is a good chance that someone will say these five words. That person likely wants the government to regulate harmful speech and justifies it by pointing out that the U.S. Supreme Court said that you can never yell "fire" in a crowded theater.

Like much of the speech that those invoking "fire in a crowded theater" are trying to prohibit, the statement is incorrect because sometimes you could yell "fire" in a crowded theater without facing punishment. The theater may actually be on fire. Or you may reasonably believe that the theater is on fire. Or you are singing in a concert, and "fire" is one of your lyrics. Of course, there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.

The real problem with the "fire in a crowded theater" discourse is that it too often is used as a placeholder justification for regulating any speech that someone believes is harmful or objectionable. In reality, the Supreme Court has defined narrow categories of speech that are exempt from First Amendment protections and set an extraordinarily high bar for imposing liability for other types of speech. As the Supreme Court wrote in 2010, the United States does not have a "free-floating test for First Amendment coverage," and the free speech protections do not "extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits."

"Fire in a crowded theater" is a derivative of a line in a 1919 Supreme Court opinion, Schenck v. United States, an appeal by a Socialist Party official of his conviction for distributing leaflets that criticized the military draft as a 13th Amendment violation. The Court unanimously rejected his appeal, reasoning that the First Amendment's protections yield to a "clear and present danger" such as the leaflet. Writing for the Court, Justice Oliver Wendell Holmes wrote that the "most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

The crowded theater scenario was a hypothetical to support a low-burden "clear and present danger" test and the conviction of a military draft critic. Although the Supreme Court has never had the occasion to adjudicate an actual dispute involving a person yelling "fire" in a crowded theater, the Court did at least narrow its "clear and present danger test" in 1969, setting a higher standard for imminent incitement of lawless action.

Yet the "fire in a crowded theater" enthusiasts persist, and they use the hypothetical to justify regulating a wide swath of harmful or objectionable speech without seriously evaluating the unintended consequences of giving the government more censorial power. Just as you cannot yell "fire" in a crowded theater, they argue, you can't say insert false speech here.

But you often can utter or publish a falsehood without a regulator or court having the power to intervene, thanks to a long history of free speech precedent. These rights have not contracted; if anything, courts and legislators have expanded protections for false speech over the years. Of course, U.S. law does not protect all false speech. If a plaintiff meets the many stringent requirements for proving defamation, the defendant may be liable for damages. Regulators may oversee the claims that companies make about their products. Prosecutors may charge defendants with fraud, lying to government officials, and other crimes arising from false statements. There are even scenarios in which lying about a fire in a crowded theater could lead to liability. But the standards for holding speakers liable for false statements are high.

But such nuance is often absent in today's discussions of free speech. After mentioning the crowded theater, Sánchez confirmed with the witness that social media platforms have policies regarding health misinformation. "We are not trying to censor speech," Sánchez said. "We are simply trying to create factually correct information to prevent harm to people, including death, and that's what they were trying to do during COVID."

But alleged misinformation is speech. While some speech undisputedly can be regulated, the Supreme Court has explicitly rejected a broad exception for false speech. Invoking the crowded theater will not magically create an avenue for unchecked censorship.

The concerns about false speech have driven many commentators and politicians to propose new laws that would penalize at least some types of false statements that have long received legal protection. For many of the same reasons that courts and legislatures have protected falsehoods for centuries, imposing broad new "misinformation" laws would be stifling, ripe for abuse, inefficient, and largely inconsistent with the U.S. legal system's approach to false speech.

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Among the most notable of such recent proposals came from Gov. Jay Inslee on the first anniversary of the January 6, 2021, storming of the U.S. Capitol. The Washington state Democrat issued a press release that touted his support for "legislation currently being written that would outlaw attempts by candidates and elected officials to spread lies about free and fair elections when it has the likelihood to stoke violence." State lawmakers, he said in the statement, were drafting a bill that would create a gross misdemeanor for elected officials or political candidates in Washington state who tell knowing lies about elections.

"The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness," Inslee said. Inslee appeared to rely on Brandenburg v. Ohio, the 1969 case that refined the Schenck v. United States "clear and present danger" test that Holmes articulated in 1919. "The U.S. Supreme Court has made it clear that speech can be limited where it is likely to incite lawlessness," Inslee's press release stated. But the statement did not capture the narrowness of the Brandenburg opinion. In that ruling, the Court wrote that the First Amendment prohibits state regulation of advocacy unless that advocacy "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Inslee's press release omitted any mention of an imminence requirement. As First Amendment scholar and Volokh Conspiracy blogger Eugene Volokh told Reason, imminence is a high bar. An example of imminent lawless action, Volokh said, is "standing outside a police station and yelling 'burn it down.'" Claiming fraudulent election results, Volokh said, is not incitement.

Therein was the problem with Inslee's initial proposal. While it was well-intentioned and arose from a legitimate desire to prevent a repeat of the unrest at the Capitol, Inslee could not easily explain how a politician's lie about election administration rose to the level of imminent incitement of lawless action.

Throughout January 2022, Inslee tried to justify the proposal as constitutional and urgently necessary. At an event on the day of his announcement, which took place as former President Donald Trump continued to contest the election results, Inslee resorted to a comfortable and censorious metaphor. "The defeated president as recently as an hour ago is yelling fire in the crowded theater of democracy," Inslee said. But no amount of references to fires or crowds or theaters could justify jailing politicians just because their speech was found to be untrue.

Perhaps in response to the criticism that Inslee's announcement received, lawmakers over the next few weeks consulted legal scholars and released a revised version of the bill. The proposal begins with legislative findings that contain bold statements about Washington state's election integrity. The bill would create a gross misdemeanor, punishable by up to 364 days in jail, for any elected official or candidate who "knowingly, recklessly, or maliciously makes false statements or claims related to any pending or completed and certified election conducted in the state, regarding the legitimacy or integrity of the election process or election results," provided that the false speech: (1) is "intended to incite or produce imminent lawless action and do incite or produce such action resulting in harm to a person or to property"; (2) is "made for the purpose of undermining the election process or the election results"; or (3) "falsely claim[s] entitlement to an office that an elected official or candidate did not win after any lawful challenge made pursuant to this title is completed and the election results are certified."

To the credit of those who drafted the revised bill, they at least tried to hew more closely to the language of Brandenburg than Inslee did in his press release. But even the narrower language—tying the false statements to imminent lawless action—was not guaranteed to survive constitutional scrutiny. And the revised bill covered two other types of false speech that were unrelated to the Brandenburg standard.

At a January 28, 2022, hearing on the bill, then–state Sen. David Frockt (D–Seattle), the bill's primary sponsor, discussed the delicate balancing act that was required to address election lies while adhering to United States v. Alvarez, Brandenburg, and other First Amendment precedents. "It's kind of like trying to drive a toaster through a car wash," Frockt said. "You have to get it just right. And so we do not take the First Amendment for granted. I don't. We don't treat it cavalierly." Others who testified were more skeptical both about the bill's constitutionality and its potential impacts.

Paul Guppy, vice president for research of the conservative Washington Policy Center think tank, pointed to the state's close 2004 gubernatorial election, which required a recount that lasted more than a month. "That was exactly a time period when we needed the maximum open and transparent debate of different opinions about what was happening with that election than ever," Guppy said. "If this bill had been in effect, public officials and candidates would have been restricted or chilled or fearful about what they could say about that election." The bill could undermine its primary goal, Guppy said. "It doesn't increase the confidence in the outcome of the election," he said. "It actually creates more suspicion when people are not allowed to debate the outcome of elections honestly."

The opposition was substantial enough to prevent the bill from passing. A few weeks after the hearing, Frockt issued a statement acknowledging that the proposal would not progress in the legislature in 2022.

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Had the bill passed, would it have survived a constitutional challenge? It is hard to predict with certainty. The revised bill at least attempted to address First Amendment concerns by mimicking the Brandenburg imminent incitement standard. While adding the Brandenburg language increases the chances of the law surviving First Amendment challenges, it also reduces the number of scenarios in which the government could hold a politician accountable for lying about election integrity.

In a 1973 opinion, Hess v. Indiana, the U.S. Supreme Court highlighted the narrowness of the Brandenburg exception that it had articulated four years earlier. The case involved an antiwar protest at Indiana University. After police began clearing the street, the defendant said something like "We'll take the fucking street later" and was arrested for disorderly conduct. The Supreme Court reversed his conviction, finding that the Brandenburg exception did not apply. "Since the uncontroverted evidence showed that [the defendant's] statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action," the Court wrote. "And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a tendency to lead to violence."

Even with the Brandenburg language, the Washington law still might face First Amendment problems. A politician challenging the law might argue that the uncertainty about what constitutes imminent incitement would chill a wider swath of constitutionally protected speech. A politician who has legitimate concerns about how an election was administered may understandably refrain from saying anything to avoid even the prospect of being prosecuted and sentenced to up to a year in prison. Even though the prosecution would face a high burden of proving all elements of the crime beyond a reasonable doubt, it is not inconceivable that a politically biased judge could sway a guilty verdict. Even if they were not ultimately convicted, they would need to spend substantial time and money defending the case. Perhaps it is more attractive to not say anything about their concerns.

Nor does the bill's limitation to knowing, malicious, or reckless falsehoods directed toward particular goals eliminate concerns of a chilling effect, as illustrated in the 8th Circuit's opinion in 281 Care Committee v. Arneson. In striking down a Minnesota law that criminalized intentional falsehoods about ballot questions, the court rejected the argument that limiting the misdemeanor to intentional falsehoods avoided constitutional problems. "The risk of chilling otherwise protected speech is not eliminated or lessened by the mens rea requirement because, as we have already noted, a speaker might still be concerned that someone will file a complaint with the [Office of Administrative Hearings], or that they might even ultimately be prosecuted, for a careless false statement or possibly a truthful statement someone deems false, no matter the speaker's veracity," the court wrote. "Or, most cynically, many might legitimately fear that no matter what they say, an opponent will utilize [the law] to simply tie them up in litigation and smear their name or position on a particular matter, even if the speaker never had the intent required to render him liable."

Even if the Washington bill were somehow found to comport with the First Amendment, I question whether it would meet its goals of instilling further confidence in elections and preventing repeats of the January 6 violence. The mere presence of the law on Washington state's books might make some segments of the public more skeptical of the state's elections procedures, perhaps fueling speculation that politicians might be aware of problems but stay quiet out of fear of jail time. This would not be an unreasonable worry; after all, they might think, why would Washington state need to threaten politicians with jail time if its elections actually were secure?

It is far from certain that such a law would substantially reduce the most harmful false speech about elections. Trump and some other elected officials spread false claims about the 2020 elections, but they were not the only ones. Washington state's proposed law does not (and could not) regulate false speech spread by talk radio hosts, social media trolls, foreign governments, and others.

The opposition to and failure of Washington state's proposal reveals the many difficulties of addressing falsehoods through legal penalties. First Amendment precedent guides the legal analysis, but even if it survived a constitutional challenge, the law would reveal many practical problems in effectively regulating false speech. All the reasons for allowing falsehoods apply to arguments against new misinformation regulations. Censorial new laws threaten to chill the ability of people to express criticism of those in power. They also reduce the ability of speakers to shine light on public functions such as the elections system. And it's unclear whether they are effective.

This article is adapted from Liar in a Crowded Theater: Freedom of Speech in a World of Misinformation by permission of Johns Hopkins University Press.