First, there’s the shoutout to Oliver Wendell Holmes, Jr.:
There is no freedom to shout “fire” in a crowded theater.
Back in 2012 I wrote at length about the context for that Holmes quote. First of all, Professor Rosenbaum — like most Holmes fans — truncates the quote to render it vague. What Holmes actually said was “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
But more importantly, Professor Rosenbaum — like most who misquote Holmes — ignores the context. To summarize rather than make you read my lengthy post: (1) Holmes made the analogy in deciding a shockingly brutal and censorious series of cases that are no longer good law, in which the Supreme Court gave the government free reign to jail people who criticized or agitated against American participation in World War I; (2) Holmes later repented of that position, undermined that line of cases through decisions he wrote or joined, and articulated a far more speech-protective line of authority that remains the law today, and (3) if you are fond of Holmes’ rhetorical flourishes, you ought to know he was the sort of statist asshole who said things like “three generations of imbeciles are enough” whilst upholding the right of the government forcibly to sterilize people deemed undesirable.
In other words, when you throw around the “shout fire in a crowded theater” quote, you’re echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself.
Ken White, “Professor Thane Rosenbaum Deceptively Carries On The Tradition of Censorship-Cheerleading”, Popehat, 2014-02-03
September 2, 2014
QotD: Shouting “fire” in a crowded theatre
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