Trope Two: "Like shouting fire in a crowded theater"
Example: " There is no freedom to shout 'fire' in a crowded theater." Prof. Thane Rosenbaum, Daily Beast, January 30, 2014.
Nearly 100 years ago Justice Oliver Wendell Holmes, Jr., voting to uphold the Espionage Act conviction of a man who wrote and circulated anti-draft pamphlets during World War I, said"[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
That flourish — now usually shortened to "shout fire in a crowded theater" — is the media's go-to trope to support the proposition that some speech is illegal. But it's empty rhetoric.
I previously explained at length how Holmes said it in the context of the Supreme Court's strong wartime pro-censorship push and subsequently retreated from it. That history illustrates its insidious nature. Holmes cynically used the phrase as a rhetorical device to justify jailing people for anti-war advocacy, an activity that is now (and was soon thereafter) unquestionably protected by the First Amendment. It's an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it's null-content, because all it says is
some speech can be banned — which, as we'll see in the next trope, is not controversial. The phrase does not advance a discussion of
which speech falls outside of the protection of the First Amendment.
Popehat
