Fire in a Crowded Theater – The Origins of a Limit on Free Speech

In discussions of the First Amendment and the limits of free speech, it is common to hear references to Justice Oliver Wendell Holmes’s famous quote from Schenck v. U.S. 1919 – “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” It is a well-crafted line that certainly has a measure of truth to it, as for practical purposes even our most treasured freedoms can have justifiable constraints placed upon them. However the Schenck case is far from a model of First Amendment jurisprudence; in later decades it would be criticized as a decision that undermined individual liberty. So to understand the phrase and its meaning we’d do well to understand Schenck v. U.S.

During World War I there were widespread fears that German and Communist sympathizers would undermine the war effort, threatening U.S. interests and security. This fear frequently led to the persecution of minorities and non-mainstream political groups. In 1917, shortly after the entry of the U.S. into WWI, Congress passed the Espionage Act, which prohibited attempts to interfere with or undermine U.S. military operations or recruitment. Socialists, who frequently expressed their opposition to the draft, were identified as potential subversive elements.

Charles Schenck served as Secretary for the Socialist Party of America. In that role he was responsible for mailings to prospective draftees that advocated dissent and political opposition to the draft. (See one of his leaflets in our document-based lesson on the case).  He was arrested and prosecuted under the Espionage Act, a conviction he challenged on free speech grounds. The case made its way to the Supreme Court, where a unanimous verdict upheld his conviction. In the decision Holmes put forward the “clear and present danger” test, saying that Schenck’s critique of the military’s draft constituted a clear danger to U.S. military recruitment efforts. It is here where Holmes added his rhetorical flourish , suggesting Schenck’s actions were as indefensible as falsely shouting fire in a crowded theater

Schenck was imprisoned for ten years as a result of his activism. At the conclusion of the war President Woodrow Wilson pardoned or commuted the sentences of more than 200 people imprisoned on Espionage Act charges. In future cases, the Supreme Court, Holmes, led by Justice Louis Brandeis, overturned some of the precedent set in Schenck. It wasn’t until Bradenburg v. Ohio 1969 that the modern conception of limits on the First Amendment, namely the ‘imminent danger’ test, was articulated. The clear difference between these two tests is the bright line principle; speech must be directly responsible for inciting immediate violence for it to be criminalized.

Do you think that under an imminent danger test Schenck would have been convicted?

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