Trump Did Not Shout 'Fire!' | Opinion

Since President Donald Trump delivered his controversial tirade last Wednesday, pundits, politicians, professors and ordinary people have compared it to Justice Oliver Wendell Holmes Jr.'s famous example of unprotected speech: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic."

Shouting "Fire!" in a theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian characterized it as "the most brilliantly persuasive expression that ever came from Holmes' pen." But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered. It has lately become—despite perhaps even because of, the frequency and promiscuousness of its invocation—little more than a caricature of logical argumentation. It should not be presented as a serious argument in the context of freedom of speech, or in the context of impeaching President Trump.

The case that gave rise to the "Fire!"-in-a-crowded-theater analogy—Schenck v. United States—involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia. In 1917 a jury found Schenck and Elizabeth Baer guilty of attempting to cause insubordination among soldiers who had been drafted to fight in the First World War. He had circulated leaflets urging draftees not to "submit to intimidation" by fighting in a war conducted on behalf of "Wall Street's chosen few." Schenck admitted that the intent of the pamphlets' "impassioned language" was to "influence" draftees to resist the draft. Nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription: "It called for measures, such as a petition for the repeal of the act" and an exhortation to exercise "your right to assert your opposition the draft."

Justice Holmes, citing the example of "shouting fire," upheld the convictions, ruling that the pamphlet created "a clear and present danger" of hindering the war effort.

But the example of shouting "Fire!" bore little relationship to the facts of the Schenck pamphlet, which contained a substantive political message. The pamphlet urged its draftee readers to think about the message and then—if they so choose—to act on it in a lawful and nonviolent way. The man who shouts "Fire!" in a crowded theater is neither sending a political message nor inviting his listener to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The message "Fire!" is directed not to the mind and the conscience of the listener, but rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection.

In that respect the shout of "Fire!" is not even speech, in any meaningful sense of the term. It is a clang sound—the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a person who pulls a fire alarm in the absence of a fire. But that obviously would have been irrelevant to the case at hand. The proposition that pulling an alarm is not protected speech certainly leads to the conclusion that shouting the word fire is also not protected. But the core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible, falsely, to analogize one set of words to another—as he could not have done if he had begun with the self-evident proposition that setting off an alarm bell is not free speech.

The analogy is thus not only inapt but insulting. Most Americans do not respond to political rhetoric with the same kind of automatic acceptance expected of schoolchildren responding to a fire drill. Not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it. Indeed, one draftee, who appeared as a prosecution witness, was asked whether reading a pamphlet asserting that the draft law was unjust would make him "immediately decide that you must erase that law." Not surprisingly, he replied, "I do my own thinking." A theater goer would probably not respond similarly if asked how to react to a shout of "Fire!"

Another important reason why the analogy is inapt is that Holmes emphasizes the factual falsity of the shout "Fire!" The Schenck pamphlet, however, was not factually false. It contained political opinions and ideas about the causes of the war. As the Supreme Court said: "The First Amendment recognizes no such thing as a 'false' idea." Nor does it recognize false opinions about the causes of war, or about the truth or falsity of electoral claims.

President Donald Trump speaking
President Donald Trump speaks in the Diplomatic Reception Room at the White House in Washington, D.C., October 23, 2019. SAUL LOEB/AFP via Getty Images

A closer analogy to the facts of the Schenck case might have been provided by a person's standing outside a theater, offering the patrons a leaflet advising them that in his opinion the theater was structurally unsafe, and urging them not to enter but to complain to the building inspectors. That analogy, however, would not have served Holmes' argument for punishing Schenck. Holmes needed an analogy that would appear relevant to Schenck's political speech but that would invite the conclusion that censorship was appropriate.

Ironically, the "Fire!" analogy is all that survives from the Schenck case; the ruling itself is no longer good law.

Over the years, since that wrong-headed decision a century ago, proponents of censorship have maintained that many expressions are issues "just like" or "equivalent to" falsely shouting "Fire!" in a crowded theater and ought to be banned. The analogy is generally invoked, often with self-satisfaction, as an absolute argument-stopper. It does, after all, claim the high authority of the great Justice Holmes. I have rarely heard it invoked in a convincing, or even particularly relevant, way. But that, too, can claim lineage from the great Holmes.

Some close analogies to shouting "Fire!" or setting an alarm are, of course, available: calling in a false bomb threat, dialing 911 and falsely describing an emergency, making a loud, gun like sound in the presence of the president.

Analogies are, by their nature, matters of degree. Some are closer to the core example than others. But any attempt to analogize political ideas in a pamphlet, or President Trump's recent inflammatory speech, to the very different act of shouting "Fire!" in a crowded theater, is either self-deceptive or self-serving.

President Trump told his listeners to march on the Capitol "peacefully and patriotically." Some didn't go to the Capitol; others went and protested peacefully; still others engaged in serious criminal behavior. None responded as if he had shouted "Fire!"

The government does, of course, have some arguably legitimate bases for suppressing speech, which bear no relationship to shouting "Fire!" It may ban the publication of nuclear-weapon codes, of information about troop movements and the identity of undercover agents. It may criminalize extortion threats and conspiratorial agreements.

It may also prohibit speech that is specifically "directed to inciting or producing immanent lawless action," but it may not prohibit "advocacy"—as distinguished from incitement of such action. President Trump's speech is clearly protected under this standard. It certainly is not the same as "falsely shouting fire in a theater." So let's stop invoking this flawed, inept and insulting analogy.

Follow Alan Dershowitz on Twitter @AlanDersh and on Facebook @AlanMDershowitz. His new podcast, The Dershow, can be found on Spotify, YouTube and iTunes.

The views expressed in this article are the writer's own.