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Copyright (c) 2002 Constitutional Commentary
Constitutional Commentary

ARTICLE: SEARCHING FOR THE FALSE SHOUT OF "FIRE"

Summer, 2002

19 Const. Commentary 345

Author

L.A. Powe, Jr.*

Excerpt



"Schenck - a nd perhaps even Holmes himself - are best remembered for the example of the man "falsely shouting fire' in a crowded theater." 1 So wrote Harry Kalven even as he repeated one of the two popular misstatements 2 of what Holmes actually wrote: "falsely shouting fire in a theatre and causing a panic." 3 With Kalven, everyone who studies the First Amendment is confronted and confounded by the false shout of fire. Where did Holmes come up with this image?

Ernst Freund, writing in The New Republic after Holmes affirmed Eugene Debs' conviction, 4 found that the Court had applied "notoriously loose common law doctrines" to send Debs to jail for what Freund aptly noted was agitating against the war. 5 Indeed Freund could not conceive of how Debs could have hoped to interfere with the military, given all the practical obstacles in the way:


 
Yet Justice Holmes would make us believe that the relation of the speech to obstruction is like that of the shout of Fire! in a crowded theatre to the resulting panic! Surely implied provocation in connection with political offenses is an unsafe doctrine if it has to be made plausible by a parallel so manifestly inappropriate. 6
 
Kalven added his amen; the example was both "trivial and misleading." 7

The reason Holmes came up with such a bad analogy to Schenck's actions 8 is that he did not see Schenck primarily as a First Amendment case. To the ...
 
 
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