Today in Supreme Court History: January 9, 1919

1/9/1919: Schenck v. United States argued.

 

Comments

[Commenter_XY]

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. It is a question of proximity and degree. -- Justice OW Holmes Jr

I always wondered where that came from. Now I know.

[Michael P]

Considering the ongoing discussion over Referencegate, I am waiting for one of our resident commenters to summarize it thus:

tldr: "Don't cry fire in a crowded theater"

followed by fervent defenses of the right to paraphrase it that way.

[Malika the Maiz]

Wow, the Javertian butthurt on this one!

[SMP0328]

Regardless of how Holmes came up with that statement, it was pure hyperbole. The notion that Mr. Schenck's anti-war advocacy was equivalent to falsely yelling "fire" in a theater is absurd. Fortunately, the Supreme Court has long since repudiated Holmes's line of thinking.

[Dan Schiavetta]

True. It was one of several WW I decisions which strike us today as overreactions.

[Dan Schiavetta]

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (decided January 9, 1990): “adult” businesses had Free Speech right to contest zoning ordinance that allowed denial of occupancy without procedural safeguards: applying standard from Freedman v. Maryland, 1965: municipality cannot allow “unbridled discretion”, must put time limit on decision, and must allow for prompt judicial review (for judicial review of some embarrassing City Council dereliction as to an adult business, see 22 Cal. Rptr. 3d 805)

United States v. Chicago, N.S. & M.R. Co., 288 U.S. 1 (decided January 9, 1933): ICC can’t suddenly construe regulation as requiring trolley car company to get its permission before issuing bonds, after years of not requiring it

White v. Pauly, 580 U.S. 73 (decided January 9, 2017): officer who shot and killed man who was pointing gun at him from inside house was not acting in violation of “clearly established” law and therefore was entitled to qualified immunity (reading the opinion one sees ugly behavior on both sides, arising from a report of road rage and drunk driving)

Chao v. Mallard Bay Drilling Co., 534 U.S. 235 (decided January 9, 2002): oil rig barge in state territorial waters was subject to OSHA violation on matter not addressed by Coast Guard regulations (uninspected well leaked natural gas and spark caused explosion killing four)

Fiore v. White, 531 U.S. 225 (decided January 9, 2001): granting habeas relief where state supreme court had held that defendant’s conduct (operating unlicensed hazardous waste facility) was not within scope of charged statute but nevertheless had refused to free him and had answered Court’s certified question that its holding as to the statute was not retroactive (!)

[JoeFromtheBronx]

“unbridled discretion”

The adult materials on the other hand can include bridled or unbridled activities.

[Dan Schiavetta]

ha!

BTW you should read 22 Cal. Rptr. 3d 805. Quite entertaining.

[JoeFromtheBronx]

Yes. Not sure as entertaining as the Blue Zebra.

[A Japanese Student]

Maybe that (!) isn't that (!), post-AEDPA. I've seen similar cases happen with ACCA/924(c), and if this Court rules that murder is not a violent crime, the number would only increase. See In re Bowe, 601 U.S. ___ (decided February 20, 2024)

In Japan, however, this might make sense. Mistakes of law are grounds for "extraordinary appeal", which can only be filed by the Prosecutor General directly to the Supreme Court. (For example, SCOJ 2010-12-20 reversed conviction for drawing a family tree ("preparing documents certifying facts for financial gain without license"), which led to extraordinary appeal vacating conviction for co-conspirator who pled guilty one year later.)

[Commenter_XY]

Sucked to be William Fiore. That case sounded interesting.

[JoeFromtheBronx]

This is the case with the famous line about "falsely shouting fire in a crowded theater." People sometimes forget about the "falsely."

Holmes used familiar language found in negligence cases. It was not intended to be a strict test of free speech. He did grant that "it well may be" that free speech meant more than prior restraints, which went further than an opinion he had written a decade before. It still was a limited sentiment.

Consider the actual case. Was this falsely crying "fire" in a crowded theater? Charles Schenck mailed pamphlets to people who were liable to be drafted. He declared they should "assert their rights." The pamphlet is filled with opinion.

He argued that the draft exemptions were discriminatory. It quotes multiple portions of the Constitution, including the Thirteenth Amendment that allegedly were being violated. He argues that the war is unjust. He encourages people to peacefully assemble, protest, and petition for the repeal of the Conscription Act.

Holmes argues this all is "liable" to interfere with recruitment criminally. He grants that "in form at least confined itself to peaceful measures such as a petition for the repeal of the act." The pamphlet doesn't blatantly argue for civil disobedience.

The targeted nature of the pamphlets makes this opinion less offensive than some of the companion cases. Nonetheless, including during wartime, free speech warrants more.

Nonethless, the opinion has the seeds of free speech protections, particularly in peacetime. Some advocates parsed the words to be more protective than intended. Holmes himself refused to admit he changed his mind when he started to write his powerful free speech dissents.

[Commenter_XY]

Maybe the Espionage Act needs repealing (or extensive modification)?

[David Nieporent]

This is the case with the famous line about "falsely shouting fire in a crowded theater." People sometimes forget about the "falsely."

And people mistakenly add in the "crowded," FWIW. What they also routinely leave out is the ending "…and causing a panic."

But what they mostly forget is that the case was actually about opposition to military conscription, and Holmes just invented a vivid but meaningless metaphor to justify punishing that speech.

[JoeFromtheBronx]

Yes, the quote is provided in the opening comment of the thread.

The case is often cited as "about" a crowded theater though I'm not sure how much that added qualified changes things except to make it seem worse. Wrongly crying "fire!" in a thinly populated or moderately populated theater and causing panic is also not to be encouraged.

Anyway, Holmes also used a "vivid" metaphor in Buck v. Bell & that turned out to be fictional. None of the generations involved were mentally disabled.

[SMP0328]

Holmes used metaphors to distort the facts of Schenck and Buck so the Court could more easily vitiate people's rights. He was a statist, so he generally sided with the government regardless of circumstances.

[JoeFromtheBronx]

He liked wordplay generally. It's a tool that should be used carefully.

[David Nieporent]

Even setting aside its disreputable origins, the problem is that the way people use the "fire in a crowded theater" line today renders it empty.

A: People should be punished for saying X.
B: No, the first amendment prohibits that. We have free speech.
A: Oh yeah? Well, you can't yell fire in a crowded theater!

In other words, all they're employing the quote for is to express the notion, "Not all speech is protected." And virtually nobody disagrees with that proposition; people agree that some speech — defamation, fraud, true threats, espionage — can be punished. Okay, fine, but that theater quote does absolutely nothing to tell us whether X specifically is, or should be, protected.

[CJColucci]

I once found myself walking by a fire in progress and yelled "Theater!"