https://www.techdirt.com/articles/20211026/20051447826/why-falsely-claiming-illegal-to-shout-fire-crowded-theater-distorts-any-conversation-about-online-speech.shtml
It keeps coming up, the all-too-common, and all-too-erroneous, trope that "you can't shout fire in a crowded theater." And it shouldn't, because, as a statement of law, it is completely wrong. It's wrong like saying it's legal to rob a bank. Or, perhaps more aptly, it's wrong like saying it's illegal to wear white after Labor Day. Of course such a thing is not illegal. It's a completely made-up rule and not in any way a reflection of what the law on expression actually is, or ever was. And it's not without consequence that so many people nevertheless mistakenly believe it to be the law, and in so thinking use this misapprehension as a basis to ignore, or even undermine, the otherwise robust protection for speech the First Amendment is supposed to afford.
This post therefore intends to do two things: explain in greater detail why it is an incorrect statement of law, and also how incorrectly citing it as the law inherently poisons any discussion about regulating online speech by giving the idea of such regulation the appearance of more merit than the Constitution would actually permit. Because if it were true that no one could speak this way, then a lot of the proposed regulation for online speech would tend to make more sense and also raise many fewer constitutional issues, because if it were in fact constitutional to put these sorts of limits on speech, then why not have some of these other proposed limits too.
But the "fire in a crowded theater" trope is an unsound foundation upon which to base any attempt to regulate online speech because it most certainly is NOT constitutional to put these sorts of limits on speech, and for good reason. To understand why, it may help to understand where the idea came from to end up in the public vernacular in the first place.
Its origins date back to a little over a century ago when the Supreme Court was wrestling with several cases involving defendants having said things against government policy. In particular, President Wilson wanted the United States to enter what eventually became known as World War I, and he wanted to institute the draft in order to have the military necessary to do it. He got his way and these decisions have become part of our history, but at the time they were incredibly contentious policies, and people spoke out against them. The government found this pushback extremely inconvenient for generating the public support it needed. So it sought to silence the loudest voices speaking against it by prosecuting them for their messages.
*snip*
Author is Cathy Gellis
Cathy Gellis is a lawyer in the San Francisco Bay Area with a practice focused on intellectual property, free speech, intermediary liability, privacy, and other innovation policy matters affecting technology use and development. She regularly writes, speaks, counsels, and litigates on these and other related topics, particularly with respect to how these issues relate to Internet platforms. Examples of her work include defending the free speech rights of anonymous bloggers, representing an organization of college webcasters before the Copyright Royalty Board, and authoring numerous amicus briefs, including in litigation regarding the scope of CDA Section 230 and cases challenging NSA Internet surveillance. Her writing on the policy implications of technology regulation has appeared in various widely-read publications, including the Daily Beast, Law.com, and the technology news site Techdirt.com, where she is a regular contributor. Prior to becoming a lawyer she was an aspiring journalist-turned-Internet professional who developed and managed websites for enterprises in Silicon Valley and Europe. She has a B.A. from the University of California at Berkeley in Mass Communications and Sociology, where she studied information technology and user adoption trends, and a J.D. from Boston University.
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