Republican Holiday Tree decorated with hanged Democratic figures

[mahatmakanejeeves]

35. That "yelling fire in a crowded theater" meme went 23 skidoo in 1969.

I can't follow threads at Twitter whatever, as I am not signed up for it. Maybe you can.

There are a lot of people in the replies to this tweet who are shouting fire in a crowded theater…

So here’s a thread on “shouting fire in a crowded theater”

1/11

Link to tweet

If not, here's what that's about. The story is eleven years old.

U.S.

It’s Time to Stop Using the ‘Fire in a Crowded Theater’ Quote

Oliver Wendell Holmes made the analogy during a controversial Supreme Court case that was overturned more than 40 years ago.

By Trevor Timm
NOVEMBER 2, 2012

Oliver Wendell Holmes made the analogy during a controversial Supreme Court case that was overturned more than 40 years ago.

{paywall}

TECHNOLOGY

Why Falsely Claiming It's Illegal To Shout Fire In A Crowded Theater Distorts Any Conversation About Online Speech

Don't give this a free pass.

By TECHDIRT on October 29, 2021 at 4:16 PM

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}