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4.2.12
WC: 191694

Indeed, in that respect the shout of “Fire!” is not even speech, in any meaningful sense of that term. 29 It is a clang sound — the equivalent of setting off a nonverbal alarm. Had Justice Holmes been more honest about his example, he would have said that freedom of speech does not protect a kid who pulls a fire alarm in the absence of a fire, in a theater when there is no fire, and thereby causes a panic. But that obviously would have been irrelevant to the case at hand. The proposition that pulling an alarm is not protected speech certainly leads to the conclusion that shouting the word fire is also not protected, but it certainly does not support the very different conclusion that circulating a thoughtful pamphlet is also not protected.

The analogy is thus not only inapt but also insulting. Most Americans do not respond to written political advocacy with the same kind of automatic acceptance expected of schoolchildren responding to a fire drill. Not a single recipient of the Schenck pamphlet is known to have changed his mind after reading it. Indeed, one draftee, who appeared as a prosecution witness, was asked whether reading a pamphlet asserting that the draft law was unjust would make him “immediately decide that you must erase that law.” Not surprisingly, he replied, “I do my own thinking.” A theatergoer would probably not respond similarly if asked how he would react to a shout of “Fire!”

Another important reason the analogy is inapt is that Holmes emphasizes the factual falsity of the shout “Fire!” The Schenck pamphlet, however, was not factually false. It contained political opinions and ideas about the causes of war and about appropriate and lawful responses to the draft. As the Supreme Court has repeatedly stated, “the First Amendment recognizes no such thing as a ‘false’ idea.” Nor does it recognize false opinions about the causes of war.

A closer analogy to the facts of the Schenck case might have been provided by a person’s standing outside a theater, offering the patrons a leaflet advising them that in his opinion the theater was a fire hazard, and urging them not to enter but to complain to the building inspectors. That analogy, however, would not have served Holmes’s argument for punishing Schenck. Holmes needed an analogy that would appear relevant to Schenck’s political speech but that would invite the conclusion that censorship was appropriate.

Ironically, the “Fire!” analogy is all that survives from the Schenck case; the ruling itself is no longer good law. Pamphlets of the kind that resulted in Schenck’s imprisonment have been circulated with impunity during subsequent wars.

Over the years I have assembled a collection of instances— including my own cases, speeches I have heard, articles I have read — in which proponents of censorship have maintained that the expression at issue is “just like” or “equivalent to” falsely shouting “Fire!” in a crowded theater and ought to be banned, “just as” shouting “Fire!” ought to be banned. The analogy is generally invoked, often with self-satisfaction, as an absolute argument stopper. It does, after all, claim the

could not have done if he had begun with the self-evidence proposition that setting off an alarm bell is not free speech.

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