Journal of Free Speech Law: "'Falsely Shouting Fire,'" by Profs. Genevieve Lakier & Evelyn Douek

The article is here; the Introduction:

Over one hundred years ago, in Schenck v. United States, Justice Oliver Wendell Holmes created a meme.

Holmes wanted to illustrate why freedom of speech was not—and could never be—absolute. "The most stringent protection of free speech," Holmes wrote, "would not protect a man in falsely shouting fire in a theatre and causing a panic." This was because, Holmes explained, "[t]he 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." A false cry of fire in a theater, he implied, surely posed this kind of clear and present danger.

It might have surprised Holmes to know that more than a century later, his claim about the constitutionality of false cries of fire in theaters has become one of the most famous hypotheticals in American constitutional law. And it has acquired a remarkable significance in debates about speech regulation. On a near-daily basis, the fire meme is invoked to support restricting a wide variety of speech, from health misinformation, to former presidents' social media posts, to Tucker Carlson's television show.

In response to these near-constant invocations of the hypothetical, many have suggested that the meme should be struck from our lexicon in conversations about free speech. These arguments typically come in three forms.

The first is that the meme is so tainted by the shameful nature of the outcome in Schenck, which essentially rubber-stamped the Wilson administration's persecution of political dissidents during World War I, that reference to it is "historically ignorant" and embarrassing. The second is that regardless of its rotten roots, the meme is not, and perhaps never was, a good description of the law: that those who invoke Holmes' famous hypothetical in public debates are relying upon "an empty rhetorical device . . . in a long-overturned case about jailing draft protestors." The third is that it doesn't matter whether or not it's good law—the meme is so often used to attempt to justify blatantly unconstitutional laws, it is dangerous for this reason alone.

As we show below, none of these arguments for banishing the analogy from free speech debates withstands scrutiny. Without a doubt, the case that birthed the fire meme, Schenck, is as big an affront to free speech as they come. But despite these origins, the fire meme is actually still good law—to an extent that surprised us both when researching this piece. Holmes' comment may have been dicta when he said it, but it has since been (and continues to be) repeatedly relied upon by courts in First Amendment cases and provides the justification for important forms of speech regulation—including laws banning bomb threats, harassment, and other types of coercive speech. In other words, for courts, the fire meme plays an important, and almost entirely uncontroversial, role in delimiting the boundaries of First Amendment protection. For this reason, the analogy also plays—or at least can play—an instructive role in popular debates about speech regulation. Analogies provide a powerful means of encapsulating complex ideas in a concrete form. The fire meme is one such analogy: It is a vivid illustration of a limitation on First Amendment protection (and one that, contrary to what is commonly assumed, actually has nothing to do with the limits that apply to speech that incites unlawful action). It is not merely a stand-in for the truism that "not all speech is protected," but says something deeper about how to think about the value of speech.

This doesn't mean, of course, that the fire meme doesn't get invoked problematically to justify what would clearly be unconstitutional laws. But the problem in these cases is not the invokers' understanding of the law, but their application of the law to the facts.

In what follows, we attempt to add light (but not heat!) to the conversation about false cries of fire in crowded theaters by taking a close look at how the fire meme was employed in Schenck and how it has been subsequently interpreted. As we explain, the problem is not that those who invoke the fire meme are relying on a "legal irrelevance" that "hasn't been the law in the U.S. for almost 50 years." The problem is that those who invoke it tend to rely on an overly reductive view of how public discourse works in the digital age (one which conceives of its participants as lemmings, more or less).

Another way of putting this is to say that looking again at the fire meme pushes us to think about the limits of the First Amendment in more nuanced ways than the inside baseball conversation about false cries of fire in crowded theaters often permits.