In his speech Wednesday night President Biden, as an introduction to his plans for gun control, said this (shorted to eliminate some duplication, full text from the White House):
"But no amendment — no amendment to the Constitution is absolute. You can’t yell 'fire' in a crowded movie theater and call it freedom of speech."
This frequently cited example of a limitation to our rights is wrong. There are few circumstances where a person can be charged with a crime entirely for speech and this isn't one of them. Every time it's said by someone of import or used in a culturally significant way, I see Twitter lawyers (I mean this earnestly, respectable lawyers with Twitter accounts like Ken White/Popehat) lose a little sanity with this pervasive falsity remaining in the public consciousness. It's really absurd how often this exact saying is used by politicians and media types or appears in pop culture. I'd already been thinking about writing this before the most prominent person on Earth included it in a big address to Congress, which worked out beautifully for me. With this topic momentarily fresh let's spend a few minutes on it.
For the most part I'll chalk it's usage up to ignorance, or a desire from certain people to look smart when they have no idea what they're talking about, but the 'fire in a crowded theater' colloquialism does at least have a background in American legal history. It started with Schneck vs U.S. (1919) a Supreme Court case regarding a group that distributed pamphlets encouraging resistance to the draft during WWI. The famous passage in the final (and unanimous) opinion, written by Associate Justice Oliver Wendell Holmes Jr., is this:
"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."
Holmes likely used this specific example following disasters involving similar circumstances in the preceding decades. Following the decision if someone's speech created a 'clear and present danger' they could potentially be charged with a crime. However, and here's the thing, the Schneck ruling was thrown out (>50 years ago!) in a subsequent case known as Brandenburg vs Ohio (1969). This later decision overruled the conviction of a KKK member for advocating some pretty terrible and hateful ideas since his speech did not produce 'imminent lawless action' to again borrow the terminology of the court. This became the test in judging the legality of inflammatory speech and remains so today as Brandenburg was the last time the Supreme Court ruled on the matter.
So the long and the short of it is there can in theory be limitation of free speech (i.e. conviction of a speech crime), but it's a very high bar to clear in establishing that any speech incited both an imminent and likely violation of the law. And most importantly in the context of what I'm writing about here, talking about shouting 'fire in a crowded theater' is a terrible example that should stop being used (especially as a justification for censorship). 'Crowded' doesn't appear in the Schneck decision anywhere and had no bearing on the original ruling. What's important was always what was said and what it was intended to do, because if there was actually a fire in a crowded theater you would want to quickly, and probably loudly, inform everyone inside. We do also have ample fire escapes today to prevent such disasters. After Brandenburg crimes purely involving speech are limited to situations directly leading to law-breaking, like rioting, and as far as I can tell nothing about creating a panic in a theater meets this current test.
It turns out there's actually a Wikipedia page on this exact topic if you're interested and don't just want to take it from me.
Up to now I've stayed focused on the crowded theater piece of Biden's speech but I can't help myself and briefly want to expand this a bit. Can we also talk about how stupid it is to say no Amendment is absolute? Say we gloss over the freedoms of religion and the press, the right to petition the government and all the rest in the initial Bill of Rights, the 13th Amendment ended slavery. The 15th prohibits a denial of voting rights based on race. The 19th prohibits a denial of voting rights based on sex. I imagine at the very least these three Amendments are absolute. Or will we soon deal with quartering soldiers again too?
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