Tuesday, August 25, 2009

"The Free Speech Exception"

Free speech is a wonderful thing. When used responsibly. But right now, that’s not happening. People are saying things, for example, about health care, that they know are not true, and nobody can stop them. You can challenge their arguments with evidence proving what they’re saying is not true, but it doesn’t help.

Because they won’t listen.

But that’s free speech for you. When you’ve got First Amendment protection, you can say pretty much anything.

There is one famous exception to the free speech protection. Something that, you say it, and you’re in trouble. They had to have at least one free speech exception, something not protected by the First Amendment.


“So people will know we’re serious.”

“I see. So it’s not like, ‘You can say anything.’”

“Right. ‘There’s an exception.’”

“It show’s that we’ve thought this through.”


So they made an exception. Something you can absolutely not say. What is it? The free speech exception states that you are not permitted to yell “Fire!” in a crowded theater.

You can see where yelling “Fire!” in a crowded theater would be a bad idea. People would panic, there’d be tramplings, chaos and more roasted theatergoers than might otherwise be necessary.

So they made that exception. Something you were forbidden to say, so a tragedy of that nature would never occur. Yell “Fire!” in a crowded theater, and no First Amendment protection for you, Mister. You’re going straight to jail.

A fire in a crowded theater is not that frequent an occurrence. But at least it’s something. And it may have broader implications, if it’s applied metaphorically. Examples of which will not follow, because I can’t think of any. Though I did hear a mention of it on Law and Order. And there was nothing on fire.

To be honest, I’m a little confused about the “‘Fire!’ in a crowded theater" exception. Is the restriction against yelling “Fire!” in a crowded theater limited to when there isn’t a fire? Or are you not allowed to yell “Fire!” in a crowded theater even when there is a fire? I’m kind of fuzzy on that point. Does the “No yelling ‘Fire!’” rule apply to just one situation, or is it both?

What I’m wondering is, why is it wrong to yell “Fire!” in a crowded theater when there’s actually a fire? What are you supposed to do? Pass a note?”

“There’s a fire in the theater. Pass it on.”

If there’s a fire in a theater I happen to be sitting in, I would definitely want to know about it. So I can make immediate plans to get out of there. To me, if someone knew there was a fire in the theater I was sitting in and they didn’t say anything, I would be really angry.

“You knew there was a fire and you didn’t say anything?”

“I couldn’t. Free speech exception.”

“All right.”

I don’t know, maybe you can yell “Fire!” when there’s actually a fire, or at least make some kind of announcement. Which then leaves the “crowded theater” issue. I mean, what constitutes a “crowded theater?” Does it have to be a sellout? Almost full, with a couple of celebrity “no shows” who got a better offer at the last minute? Full except for those private boxes up on the side, like where Lincoln got shot? I mean, who wants to sit there?

Say there’s this half-filled theater. The play’s okay, but it could use stronger casting, richer production values, and a rewritten entire script. Maybe you couldn’t get into the big hits. You love the theater. So you took what you could get.

If the theater’s not crowded, can they yell “Fire!” there?

Whether there’s a fire there or not?

I wanted to talk seriously about the First Amendment. Bu I guess I’m not smart enough. It’s a very important issue. Right now, the protected right of free speech is being marshaled against reason and possibility. And that’s sad.

I wanted to write about free speech, and what I ended up writing was silliness.

Good thing that there’s no free speech exception for that.


Joe said...

I applaud your silliness. It made me feel infinitely better and the release of endorphins helps a great deal.

Silliness is underrated. Seriousness is overrated. You will never hear someone say:

"I was very stressed about _____ but then I read a blog entry on free speech in a democracy and now I feel better."

Lord Lillis said...

At least you didn't shout "theatre" in a crowded fire house.

Greg Morrow said...

I am irresistably compelled to be pedantic. Justice Holmes's remark about the limits of free speech is falsely shouting fire in a crowded theater. People keep dropping the falsely.

Sorry. You can all be funny now.

A. Buck Short said...

Well I guess all the bases have been pretty much covered. Although one would be remiss in not pointing out that in Diane Lane v. Every Guy in America, the 1st Court of Appeals ruled it is perfectly acceptable to even falsely yell “fire” in a crowded theater – provided the picture up on the screen is “Under the Tuscan Sun.” Even if it’s being shown on a plane!

Also, the clarification is well taken – especially when talking about Bostonians like Justice Holmes. During the South Boston school busing “crisis” of the 1970’s, we learned that Col. Prescott’s famous command at Bunker Hill wasn’t “Don’t fire until you can see the whites of their eyes,” but “Don’t fire if you can see they’re white.” Glad for the opportunity to also have cleared that one up.

Anonymous said...

This is an oversimplification, but the fire in a crowded theatre thing is really about when speech crosses over the line to become action. You're no longer expressing an idea, but now causing a panic, which is the action, and may not be protected by the first amendment. The first amendment has been eroded by so many exceptions over the years anyway...

Alan Coil said...


I suspect you know this, but for anybody who doesn't, fires in theaters used to happen frequently, and usually caused large numbers of fatalities. Lighting was by kerosene lamps, and most of the decorations, and even the building itself, were highly flammable. With a call of "Fire!", stampedes would occur. In modern theaters, there is little chance of fire. Also, little chance of entertainment.