The article is here; the introduction:
Over a hundred years ago, in Schenck v. United StatesJudge Oliver Wendell Holmes created a meme.
Holmes wanted to illustrate why freedom of speech was not – and could never be – absolute. “The most rigorous protection of free speech,” Holmes wrote, “would not protect a man who falsely shouted fire in a theater and caused a panic.” This is because, Holmes explained, “[t]The question in each case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger which will bring about the substantial evils which Congress has a right to prevent. a fire in a theater, he implied, certainly represented this kind of clear and present danger.
It may have surprised Holmes to learn that more than a century later, his claim about the constitutionality of false shouts of fire in theaters has become one of the most famous hypotheses in American constitutional law. And it has acquired considerable significance in debates over the regulation of speech. Almost every day, the fire meme is invoked to argue for limiting a wide variety of speech, from health misinformation, to social media posts by former presidents, to Tucker Carlson’s television show.
In response to these near-constant invocations of the hypothetical, many have suggested that the meme should be erased from our lexicon in conversations about free speech. These arguments typically come in three forms.
The first is that the meme is so tainted by the shameful nature of the outcome Schenck, which essentially endorsed the Wilson administration’s persecution of political dissidents during World War I, that reference to it is “historically ignorant” and embarrassing. The second is that, despite its rotten roots, the meme is not, and perhaps never has been, a good description of the law: those who invoke Holmes’s famous hypothetical in public debates are relying on “an empty rhetorical device… . in a long-overturned case over the incarceration of draft protesters.” The third is that it doesn’t matter whether or not it is a good law: the meme is so often used to try to justify blatantly unconstitutional laws that it is dangerous for that reason alone.
As we will show below, none of these arguments for banishing analogy from free speech debates stand up to scrutiny. Without a doubt, the case that gave birth to the fire meme, Schenck, is the greatest affront to free speech imaginable. But despite these origins, the fire meme is actually still good law, to an extent that surprised us both when researching this article. Holmes’ comment may have been dicta when he said it, but it has since been (and continues to be) repeatedly invoked by courts in First Amendment cases and provides justification for important forms of speech regulation, including laws that they ban bomb threats, harassment. and other types of coercive speech. In other words, for the courts, the fire meme plays an important, and almost entirely incontrovertible, role in demarcating the boundaries of First Amendment protection. For this reason, analogy plays – or at least can play – an instructive role in popular debates about the regulation of speech. Analogies provide a powerful means of encapsulating complex ideas in concrete form. The fire meme is one such analogy: It is a vivid example of a limitation on First Amendment protection (and which, contrary to popular assumption, actually has nothing to do with the limits that apply to speech that incite illegal actions). This isn’t simply a replacement for the truism that “not all speech is protected,” but it says something deeper about how to think about the value of speech.
This does not mean, of course, that the fire meme is not problematically invoked to justify what would be clearly unconstitutional laws. But the problem in these cases is not the claimant’s understanding of the law, but their application of the law to the facts.
Below, we will attempt to add light (but not heat!) to the conversation about fake fire shouts in crowded theaters by looking closely at how the fire meme has been employed in Schenck and how it was subsequently interpreted. As we explain, the problem is not that those invoking the fire meme are relying on a “legal irrelevance” that “has not been law in the United States for nearly 50 years.” The problem is that those who invoke it tend to rely on an overly reductive vision of how public discourse works in the digital age (one that conceives of its participants as lemmings, more or less).
Another way to put this is to say that looking at the fire meme again pushes us to think about the limits of the First Amendment in more nuanced ways than the internal baseball conversation about fake fire shouts in crowded theaters often allows.