Falsely Shouting Fire

Editor’s note: Today I’m cranking the WABAC machine to July 2016, where I explore the origin of an old (and widely misunderstood) adage about the limits on free speech. Expanded from the original.

Most of us understand that there are limits on the protection offered by the Constitution for speech, and most of us have heard of the shouting Fire! in a crowded theater exception. We rarely specify, but generally understand, that it is only when the announcement is false that the announcer can get in trouble.

Fewer of us know the origin of this principle, a 1919 Supreme Court ruling Schenck v. United States. I won’t go into the details of the case, which had to do with distributing leaflets urging people to resist the draft during a time of war. Instead, I’ll just jump to relevant part of the opinion (written by Oliver Wendell Holmes), the “fire in a crowded theater” principle:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This limit on free speech popped into my forebrain when I read a story about a man in Idaho who leapt onto a bar while wearing a backpack, and shouted:

Allah is the only one true god

He was reportedly tackled by staff, who stripped him of his backpack and took the backpack out to an alley, while patrons fled the building. The backpack turned out to be devoid of anything dangerous, but given the fact that suicide bombings in the name of Allah appear on the news far too frequently, it’s clear that this act was the equivalent of falsely shouting “Fire!” in the Holmes context.

The shouter, identified as Ralmanzow Bell, was charged with disorderly conduct. Authorities aren’t treating it as a terrorist act, but rather as the actions of a drunk.

Youtube has a number of videos of fake backpack bomb pranks, more than a few of which have popped up on my Facebook feed (shared by friends who find them funny). Judging how I’d probably react should someone do that to me, I don’t find them funny in the least. In fact, I expect that, if it hasn’t happened already, someone will react by running down and beating up (or worse) the prankster. It is also not outside the realm of reasonable expectation to imagine that some person carrying a concealed pistol, whether it be an off-duty law enforcement official or a civilian, might shoot such a prankster. In my opinion, given the circumstances reported, I could reasonably conclude that someone who shot the Idaho drunk after his shout would have acted in defense of himself and others. In fact, such hashappened in Australia, where a somewhat notorious bomb prankster got himself shot.

I do wonder what the reaction would be from the intelligentsia should that have happened. Idaho, it should be noted, just enacted permitless concealed carry legislation for non-disqualified adults 21 and older, which means there may very well have been someone armed in that bar (although there are restrictions against carrying concealed while intoxicated).

Given recent domestic terrorism incidents like the Boston Marathon bombing, the San Bernadino and Orlando mass shootings, recent international bombings like the one just a couple days ago in Baghdad, the long history of Islamic suicide-bombing terrorism world-wide and, of course, 9/11, we should expect that people would react very seriously to any action that appears like an Islamic terrorism bomb threat.

This sort of thing could turn tragic at any moment. I’d have little sympathy for a prankster or someone who legitimately wanted to incite panic but didn’t actually possess any weapons who ended up beaten or shot. I fear, though, for the people whose perfectly legitimate reactions got themselves or others hurt, who’d be prosecuted by overly zealous, politically correct, or politically pressured district attorneys, or who’d have to live the rest of their lives with having beaten or shot a prankster.

People act stupidly all the time. If their stupidity results in bad outcomes for themselves, I won’t shed a tear. I fear, though, for people like Christopher Ozuna, who grabbed Bell’s backpack and ran with it out into an alley and away from the crowds. He acted selflessly and heroically, putting himself at risk to protect others. Under slightly different circumstances, he might have done something that caused harm to Bell, and even if he’d been justified in doing so, he’d suffer ramifications for the rest of his life.

We should zealously defend our right to free speech against the endless efforts to stifle it, via hate-speech laws, via campaign finance restrictions, via various efforts to regulate the press and blogging, and so forth. However, we should also zealously decry, challenge, and prosecute those who cross the falsely shouting fire line. We should not blindly defend as “free speech” defend statements or actions that, as Justice Holmes aptly noted, cause a clear and present danger.

I recently discussed how Senator Lindsey Graham asserted that there are limits on our rights and liberties but showed no evidence that he understood the how, what or why of such limits. Senator Graham’s statements suggested that he felt the mere presence of limits was sufficient to empower Congress to write whatever other limits it felt appropriate. The Schenck case, however, points out that limits on our rights are themselves restricted to situations that involve the rights of others. In other words, my rights end where they interfere with yours, not where some politician decides they do.

This cannot be emphasized enough. A limit on your rights must be based on the principle that others have equal rights, as in ‘the right of me to swing my fist ends at the tip of your nose.’ Not, despite blanket assertions by such as Joe Biden and New Mexico Governor Michelle Lujan Grisham, that since rights are not absolute they can be restricted however they want.

Moreover, legitimate limits are not preemptive. If you scream “Fire!” where there is none, and nothing bad happens, you might be subject to a disorderly conduct accusation, but that’s about it. They can’t write a law about speech, only about the consequences of misused speech. The noted exceptions to free speech, including slander, libel, intimidation, and incitement, are always about those consequences, not about prior restraint. Those who would have the government pry into our “persons, houses, papers, and effects” just to make sure we’re not up to no good should learn they can’t have their way. Those who demand restrictions on gun owners need to be reminded of this distinction.

As for Mr. Bell, he acted foolishly and crossed the Schenck threshold, and is lucky he didn’t come to greater harm.