“Shouting Fire in a Theatre”: Schenck v. United States Turns 100

Today, March 3, 2019, marks the 100th anniversary of the Supreme Court’s decision in Schenck v. United States, 249 U.S. 47 (1919), an important First Amendment case setting the stage for the modern interpretation of the First Amendment.

The unanimous Court, in an opinion authored by Justice Oliver Wendell Holmes Jr., upheld the convictions, under the Espionage Act of 1917, of men who distributed fliers during World War I to draft-age men urging resistance to the draft. The court held that the First Amendment was not an impediment to such convictions.

It is best known for the following language:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. … The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. … 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. It is a question of proximity and degree. [Emphasis added.]

The case – and, in particular, its “falsely shouting fire in a theatre” language – is often cited by those arguing in favor of censorship and against the application of the First Amendment. While the above language does fairly embody the basic principle that First Amendment protection is not absolute, it is not directly tied to the facts of the case and is therefore non-binding dictum.

Schenck was effectively overruled by Brandenburg v. Ohio, 395 U.S. 444 (1969).