The "Yelling 'Fire' in a Theater" Analogy

Thursday, February 16, 2006

The "Yelling 'Fire' in a Theater" Analogy

Jehan Sadat, a visiting scholar at the University of Maryland, is the latest person to use this poor analogy for the Danish cartoon controversy. In Wednesday's New York Daily News, Sadat wrote that cartoons that satirize or criticize religions should be banned:
Let me be perfectly clear: I am a Muslim, and I am offended by the cartoons of the Prophet Muhammed.

... freedom does not come without responsibility. I know that one should not, and cannot, yell "Fire!" in a crowded theater just because one is free to do so. Even freedom has its parameters.
He's right: even freedom has its limits. But he has misinterpreted this analogy.

The source of this analogy is the 1919 U.S. Supreme Court case of Schenck v. United States, in which Justice Oliver Wendell Holmes, Jr. wrote a majority decision upholding a man's conviction under the Espionage Act. The man (Schenck) had been arrested for distributing leaflets that were critical of the military draft. Explaining his decision, Holmes wrote these words:
The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.
There are several reasons why the Holmes analogy -- as much as it is used -- doesn't apply to the Danish cartoon controversy.

First and foremost, the standard that Holmes established in Schenck was significantly weakened (expanding free speech rights) by later SCOTUS decisions.

Second, even if we applied the "clear and present danger" standard established by Holmes in 1919, it's difficult to argue with a straight face that the cartoon created this danger. In this article, Ken Paulson, a scholar at the First Amendment Center, puts the Holmes standard in its proper context:
While many use it to argue that free expression can be constitutionally curbed, it is really less about ideas than about incitement. Falsely shouting “fire” in a theater is an act designed to promote panic and place people in fear for their lives.
By contrast, the Danish newspaper editors who published newspapers with the controversial cartoon depicting Mohammed may have intended to be provocative, but there is no evidence they intended for the cartoon to "place people in fear for their lives."

The fact is that the protests we've seen in the Muslim world occurred months after the original cartoon was published and, even then, only after Danish Muslims launched an active and coordinated campaign to raise anger to this fever pitch.

The cartoon was highly provocative, I'll agree. But that's not a sufficient standard to suppress free speech. In fact, it was Justice Holmes himself who in 1925 wrote a dissenting opinion in a case involving an anarchist pamphleteer in which Holmes eloquently observed:
Every idea is an incitement.
Finally, the Holmes analogy doesn't work because the venues for these messages were very different.

A theater is a confined and often crowded physical space. Yelling "fire!" or a similar warning there has great potential to cause injury or even death. This was especially true in 1919, when fire codes were minimal, unenforced, or non-existent in most cities and towns. By contrast, a cartoon is not viewed by large masses of people at the same time and in the same place -- thus, the potential for spontaneous panic is quite minimal.

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