The political left and right tussle over the smallest things. But sometimes, they fight over fundamental concepts, like free speech. Not surprisingly, partisans have a tendency to get a lot wrong about free speech, so Greg Lukianoff put together a list of answers to 12 “bad anti-free speech arguments” that simply refuse to go away.
Included on the list: the “you can’t shout fire in a crowded theater” assertion. It’s just plain wrong (and not even the law):
This old canard, a favourite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes and point out that it is, in fact, as Alan Dershowitz puts it, “a caricature of logical argumentation.” Ken White has already penned a brilliant and thorough takedown of this misconception. Please read it before proclaiming that your least favourite language is analogous to shouting fire in a crowded theatre.
The phrase is a misquotation of an analogy made in 1919 Supreme Court opinion that upheld the imprisonment of three people—a newspaper editor, a pamphlet publisher and a public speaker—who argued that military conscription was wrong. The court said that anti-war speech in wartime is like “falsely shouting fire in a theatre and causing a panic,” and it justified the ban with a dubious analogy to the longstanding principle that the First Amendment doesn’t protect speech that incites people to physical violence. But the Supreme Court abandoned the logic of that case more than 50 years ago. That this trope originated as a justification for what has long since been deemed unconstitutional censorship reveals how useless it is as a measure of the limitations of rights. And yet, the crowded theatre cliché endures, as if it were some venerable legal principle.
Oh, and notice that the court’s objection was only to “falsely shouting fire!”: if there is, in fact, a fire in a crowded theatre, please let everyone know.
There are 11 more answers to bad free speech arguments at the link. Read them all – and let’s help push the fire in a crowded theater nonsense into the dustbin where it belongs.