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Shouting "Fire" In A Theater

By The Reverend Published: January 12, 2011

Back in 1919, Oliver Wendell Holmes, associate Supreme Court Justice, made this saying popular.....

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater 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.

I bring this up in light of the not unexpected blowback from American conservatives fearful that progressives and others are using the Arizona slaughter to silence conservative voices in America.

Justice Holmes stated that when it came to protected speech in America, such expressions of speech as a man falsely shouting "fire" in a theater, thus causing a panic......should not be protected. Holmes was suggesting that there is a limit to what speech we will protect under the first amendment guarantee.

The key word....and the word which is rarely included in the repetitive use of...'shouting fire in a theater is not protected speech' the word, falsely.


The specific speech which Holmes said shouldn't be protected was speech uttered by someone who was cognizant that the words he spoke were untrue. The word "falsely" is vital to the idea.

A theater is full of people relaxing, being entertained. A person shouts "fire", knowing full well there is no fire, just to create chaos, panic, injury and death. Speech like that, speech which places innocent people in a chaotic panic of immediate danger, speech which the speaker knows is false....according to Holmes.....was not protected speech.

The flip side here is "responsible" speech. Obviously, it would be irresponsible to shout "fire" in a crowded theater when you knew there really was no fire. In fact, the very purpose of shouting "fire" in a crowded theater when the shouter knew there was not a least it seems to me.....would be to create chaos, destruction, injury and death, the very definition of irresponsibility.

In the crowded theater example, the crowd doesn't know any better. They don't know whether the theater is on fire, or not. Far as they know, everything is fine. The shouter, however, does know better. In fact, he has calculated in his mind what will ensue if he shouts "fire".....chaos, injury, death.....and THAT is why he shouts "fire". He wants what he anticipates will happen...confusion, panic, happen.

Note that this is entirely different from a theater goer who shouts out "such-and-such actor is a putz", or similar crankery. Rude? Obnoxious? Yes. But not purposely shouted to induce panic and destruction.

I realize that I'm going to catch hell by going where I'm going next.....but I catch hell regardless, and I have no fear of hell anyway, so here goes....

Much of the political speech and imagery we've heard and seen over the last 2 years has been like shouting "fire" in a crowded theater when the shouters knew the theater was not on fire. Irresponsible speech....knowingly spoken in anticipation of the chaos, fear and panic which would ensue as a result of saying the words enough times.

Two examples....

During the 2008 campaign, John McCain was confronted with a confused and fearful woman who said.....

"I can't trust Obama. I have read about him and he's not, he's not uh — he's an Arab. He's not — "

Here was a woman who had heard or read the false speech of shouters in the political theater. She didn't know any better.....but she had heard and read irresponsible speech while actively engaged in the process of political theater....and she was obviously panicked and fearful as a result.

McCain, to his great credit, spoke responsibly in his answer....

"No, ma'am. He's a decent family man [and] citizen that I just happen to have disagreements with on fundamental issues and that's what this campaign's all about. He's not [an Arab]."

And McCain didn't leave it at that.....

"We want to fight, and I will fight," McCain said. " But I will be respectful. I admire Sen. Obama and his accomplishments, and I will respect him."

At which point he was booed again.

"I don't mean that has to reduce your ferocity," he added over the jeers. "I just mean to say you have to be respectful."

On the other hand, we have an opposite example from McCain's former running mate, Sarah Palin. When Palin shouted out during political theater performances that Obama "palled around with terrorists".....she knew that what she was shouting was untrue. Obama has never "palled around with terrorists", but that wasn't the objective of Palin when she said it, and kept saying it. Her objective, unlike McCain's in his exchange with the woman, was to create chaos, panic and fear about Obama.

As the health care reform discussions began in earnest, once again, Sarah Palin shouted out on her Facebook and Twitter pages that Obama was setting up "death panels." Palin knew that what she was saying was untrue, false....before she shouted it....but she shouted it anyway to provoke a response of fear, panic, and chaos in those who don't know any better.

I could offer many, many more examples.

Without doubt, there will be those who attribute what I've said here to some desire I have to silence the free speech of conservatives. That, of course, is ridiculous. Scan any of my comment threads and you will find a healthy, no holds barred, exchange with all comers.....far rightists, leftists and everything in between.

The point I'm feebly attempting to make is the distinction between responsible speech and irresponsible speech.....the same point, I think, Justice Holmes was making when he made the "no shouting fire falsely in a crowded theater" famous.

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