Legal Mythbusting Series: Yelling “FIRE” in a crowded theater

You can’t yell fire in a crowded theater. I’m sure you’ve heard somebody say that before when discussing free speech and limitations on free speech and the First Amendment. Well, it’s actually one of the most widely misunderstood quotes in American law. It’s routinely parroted as the status of why there can be or are limitations on free speech, but it is a big fat myth. I will explain here in just a moment, so stick around.

Happy Friday, everybody. Hope you had a great week, and as I said, I’m talking this week about the legal myth of you can’t yell fire in a crowded theater. It comes up all the time in all of my First Amendment type cases when I’m discussing somebody kind of where the limitations on free speech are, they always say, “Well, yeah, I know there are limitations because you can’t yell fire in a crowded theater.” So where did that come from?

It actually came from a case way back when, in I believe it was 1917, Schenck versus United States is the case. I’ll put the citation down here so you can actually look it up. And it was a quote from Supreme Court Justice, Oliver Wendell Holmes. And the interesting about it is the Schenck case wasn’t about fires, it wasn’t about theaters, it kind of wasn’t even about free speech. It was in a way, but it was really about a guy that was being charged with violations of the Espionage Act because he was a member of the socialist party and he was speaking out against the draft. And the other bizarre thing about why this quote gets attributed to why it’s okay to limit free speech is, the Schenck case, which has now actually been overturned and has been for like 60 years, actually stood for the exact opposite. The Schenck case was applying a pretty large degree of censorship on free speech. That’s why it was overturned is because it was actually found to be completely contrary toward what the First Amendment stood for.

So, the idea that you can’t yell fire in a crowded theater, Justice Holmes was using that as an analogy to simply say that free speech can’t go completely unchecked. And that idea has maintained it’s truth throughout the years. That’s still true. There are limitations on what is considered protected speech and what is not considered protected speech, and that’s a topic for a different video. But it’s just always been interesting to me that this quote, which is just dicta, it’s not the holding of the case, it’s not really the law of the land, and it’s not Justice Holmes saying that’s what the law of the land should be, has somehow withstood the test of time and is still, to this day, if you watch news reports on First Amendment issues, or you read newspaper articles on First Amendment issues, you’ll invariably run into somebody that talks about, “Well, we all know you can’t yell fire in a crowded theater.” That’s not the law. It really never has been the law. And it’s from a case that got overturned some 60 plus years ago.

So, anyway, quick video today, just wanted to bust that legal myth. I’m going to start this series where I’m going to try to shortly dispose of some legal myths that you hear pretty regularly. So stay tuned because I think, I’m hoping, this is the first video in a series. If there’s any legal myths out there that you want me to examine, whether that’s tell you if they’re true or not true, I’m happy to do it, especially if they relate to criminal law, because that’s really what my practice area is. So, stay tuned for those. Drop me a comment below, send me an email, give me a call if you have any ideas or something you want to see me discuss in a future video, and I’d be happy to do it. Have a great weekend, everybody. Stay safe out there and we’ll see you next week.