Understand What the Term “Shouting Fire in a Theater” Means Before You Use It

“Comedian Kathy Griffin has proverbially shouted ‘fire’ in a movie theater and now is distraught over the consequences,” the Grand Forks Herald editorial states today.

It’s a good editorial overall, skewering Griffin for playing the victim amid recent controversy, but I have to take exception to one part of the argument the editorial makes.

The whole “fire in a theater” thing is invoked often in free speech debates, usually by people who don’t understand its origins. It’s used as an example of the outer boundaries of unfettered free speech. An example of a sort of speech that’s so irresponsible it ought not be allowed.

I don’t think it applies to the Griffin fiasco. There have been no serious efforts by the government to silence her (the Secret Service investigation is absurd, mind you, but not a limitation on her speech). She’s free to engage in all the decapitation humor she likes, aimed at whoever she’d like.

She could pretend to cut Barron Trump’s head off next, and while most of the world would find it a disgusting and despicable act, Griffin would be allowed to do it.

She should be.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]Kathy Griffin’s ridiculous antics are exactly why the 1st Amendment exists.[/mks_pullquote]

We don’t need the protections of the 1st Amendment to guard inoffensive discussions about the weather or baseball. We need them to protect the most vile, the most polarizing and controversial, sort of speech.

Kathy Griffin’s ridiculous antics are exactly why the 1st Amendment exists.

Griffin didn’t “shout fire in a theater.”

But we have to remember that term’s roots. It was used by U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. when writing the unanimous opinion in Schenck v. United States upholding a challenge to the Espionage Act of 1917.

The case was about an anti-war activist writing and distributing a pamphlet critical of the WWI draft.

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic,” Holmes wrote.

In other words, the “shouting fire in a theater” metaphor was a rationalization. A court-created exception to the 1st Amendment allowing Congress to suppress anti-war speech. The Schenk opinion is one of the most odious in the realm of free speech jurisprudence. A black mark on America’s aspirations toward free expression.

Yet today the keystone argument from that opinion is cited all the time, unwittingly, by people who would like to believe themselves supporters of free speech.

It really should be a parable for the dangers of creating exceptions to free speech protections. Not to mention a glaring example of the fallibility of the courts.