UPDATE: This piece has been updated to reflect a statement from Will Creelet, FIRE legal director.
Democratic Rep. Seth Moulton said that Americans are taught that they do not have the right to yell “fire” in a crowded theater during a disinformation panel on Tuesday at the World Economic Forum’s (WEF) week-long meeting in Davos, Switzerland, despite constitutional experts debunking the claim.
Tuesday’s panel, titled The Clear and Present Danger of Disinformation, discussed how “the public, regulators and social media companies” can work together to “tackle disinformation,” according to the WEF website. During the panel, Moulton said that Americans are taught that they cannot shout “fire” in a crowded theater. (RELATED: Meet The ‘Disinformation’ Panelists, Including A Media Mogul and Fem Congressman, Attending the World Economic Forum)
“This concept of preserving public safety, even under the banner of free speech, is actually something that we’ve accepted for a long time,” Moulton said. “We get taught in grade school the concept of ‘yes, you’re allowed free speech but not crying fire in a crowded theater.'”
In a Davos panel on “disinformation,” @RepMoulton says that Americans learn in grade school that “yelling fire in a crowded theater” is not protected free speech. While Americans may learn it, this is not true. @DailyCaller https://t.co/gx0YkoWjU3 pic.twitter.com/iqbsfW0aNR
— Ailan Evans (@AilanHEvans) January 17, 2023
Jeff Kosseff, an associate professor of cybersecurity law at the United States Naval Academy, wrote on January 4, 2022 that yelling fire in a crowded theater is permissible speech.
“In some cases, intentionally and falsely shouting fire in a crowded theater when there is not a fire might lead to a charge such as disorderly conduct. In other cases, shouting fire in a crowded theater would not lead to such charges. But that is beside the point. The danger in the phrase ‘fire in a crowded theater’ is that it is too often used as a wildcard for the proposition that the government can ban any speech that it believes is harmful. And that simply is not true. We should be happy for that,” he told the Daily Caller News Foundation.
“If someone were to be liable for yelling fire in a crowded theater or any other speech, it would have to fall within a narrowly defined exception to the First Amendment,” he continued. “We do not have a broad ‘misinformation’ exception to the First Amendment. We do not have a hate speech exception to the First Amendment. This is a feature and not a bug: we do not want to give the government the power to dictate what speech is acceptable. In many other parts of the world – including parts of Europe — they take a different approach.”
The quote, which is commonly used to argue for speech limitations, is misconceived, according to Greg Lukianoff, president and CEO of free speech watchdog Foundation for Individual Rights and Expression (FIRE), and Nadine Strossen, FIRE senior fellow and former American Civil Liberties Union president. The pair argue that shouting “fire” in a crowded theater is only illegal if the claim is false.
“Representative Moulton makes the typical mistake that most people make in paraphrasing this famous statement by Justice Oliver Wendell Holmes, who said that freedom of speech doesn’t protect falsely shouting fire, causing a life-endangering panic. But if the theater is on fire, that shout is life-saving! This critical distinction underscores that speech may be restricted if – but only if – it directly, imminently causes or threatens some specific serious harm,” Strossen told the DCNF. “For example when false statements constitute fraud, defamation, or perjury, they may be restricted. But the broad, subjective, manipulable concept of ‘disinformation’ would endanger too much expression that – along with the true shout of ‘FIRE!’ – would actually be life-saving.”
Lukianoff argued that those who say that “fire” cannot be shouted in a crowded theater “is showing that they don’t know much about the principles of free speech, or free speech law — or history.”
“This old canard, a favorite reference of censorship apologists, needs to be retired,” he wrote. “It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes[.]”
Will Creeley, FIRE legal director, told the DCNF that if he “had a quarter for every time someone cited Justice Oliver Wendell Holmes’ ‘fire in a crowded theater’ line to argue in favor of restricting freedom of expression, [he’d] be on a mountain somewhere instead of answering questions about common misconceptions about the First Amendment.”
“That line endures, maddeningly, but Justice Holmes reversed his own thinking on his ‘clear and present danger’ test for speech months later, in Abrams v. United States,” he explained. “And in the decades since, the Court has abandoned the ‘clear and present danger’ test for the incitement standard announced in 1969’s Brandenburg v. Ohio, which remains the legal test.”
Moulton did not immediately respond to the Daily Caller News Foundation’s request for comment.
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