ROCKFORD, Ill. (WTVO) — In discussions about the First Amendment’s protections for free speech, a popular misconception is that it is illegal to yell “Fire!” in a crowded movie theater.
But, it’s not true.
According to Reason, in 1919 a case was brought before the Supreme Court which became known as Schenk v United States, which dealt with whether distributing pamphlets, distributed by Charles Schenck, the Secretary of the Socialist Party of America, protesting the draft during World War I, could lead to a conviction under the Espionage Act.
In his opinion, Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
However, in a 2012 article for The Atlantic, author Trevor Timm explained that Holmes was using the example as an analogy to illustrate that “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.”
The point is that Holmes’ quote about yelling fire in a theatre was never part of the ruling.
The 1919 court ruled that Schenk’s pamphlet represented a “clear and present danger” to a country at war, and he was imprisoned. In 1969, the Supreme Court’s Brandenburg v Ohio decision overturned Schenk v United States, ruling that inflammatory speech, even speech advocating violence by the Ku Klux Klan, is still protected speech unless the speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
So, while it is legal to yell “Fire!” in a crowded theater, if such a hoax lead to injuries or death the perpetrator could be charged with Disorderly Conduct, Inciting a Riot, or other serious charges.