Fire in a Crowded Theater

AP Photo/Patrick Semansky

Note: This “Moore to the Point” commentary aired on NewsTalkSTL on Tuesday, May 17th. Audio included below.

In response to the horrific shooting in Buffalo over the weekend, New York Governor Kathy Hochul issued several statements – which is appropriate under the circumstances. However, in those statements, she echoed a famous analogy — frequently invoked by President Biden — that is overused and generally misunderstood.

The claim that “You’re not allowed to scream fire in a crowded theater” gets several things wrong. First, you most certainly are allowed to scream “fire” in a crowded theater if there is, in fact, a fire. The actual quote by Justice Oliver Wendell Holmes in the case of Schenck v. United States was: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” (emphasis mine)

Second, that analogy invoked by Justice Holmes in the Schenck case was dictum, meaning it had no binding authority – it was just part of the Justice’s thought process and explanation. In fact, the case had nothing to do with fires or theaters – or even false statements — but was, instead, about a pamphlet opposing the draft.

Third, the Schenck case was overturned by Brandenburg v. Ohio in 1969. (See? The Supreme Court overturning bad decisions is not, in fact, unprecedented – nor unwelcome.)

H/t to Nick Arama for the timely reminder on this issue.