Re: Yelling Fire

Pat Fallon (
Tue, 24 Jun 1997 16:59:30 -0400 (EDT)

>Somebody mentioned that bit about yelling fire in a crowded theater, I said:
> That cliche originally came from the American jurist Oliver Wendell Holmes
> (1841-1935), he used it in one of his decisions that upheld the conviction
> of a man imprisoned for saying America should not be in the First World War.
> Years later Holmes said it was the worst decision he made in his entire
> legal career and he cringed whenever he heard somebody quoting his famous
> saying.
>Several have written me asking for a source. The decision was called
>"Schenck vs United States" and came out in 1919, you can read about it on
>page 942 of "The Oxford Companion To The Supreme Court" edited by Kermit L
>On page 422 of the book "Justice Oliver Wendell Holmes" by G Edward White is
>a letter Holmes wrote to a friend talking about this and several similar
>decisions he wrote:
> "I greatly regretted having to write them and, between ourselves, that the
> government pressed them".
>In another letter he expressed his sorrow, and I don't think guilt would be
>too strong a word, that Schenck was still in jail:
> "I hope the president will pardon him and some other poor devils I have
> more sympathy"
>It's ironic that in his day Holmes was one of the leading advocates of free
>speech but today his most remembered saying is used by those who wish to
>stifle it.
> John K Clark

Yes. Prosecuting someone who falsely yells "Fire!" in a crowded theater is
not an infringement of free speech. The ticket purchaser and the theater
owner have
entered into a contract. The ticket purchaser has bought a ticket to view a
performance. It's contract law and property rights, not a free speech issue.

Pat Fallon