You cannot yell “fire” in a crowded theater.
Well, you can of course but you can also be held responsible for whatever results from your having done so.
The phrase comes from Supreme Court Justice Oliver Wendell Holmes, Jr in the 1919 case Schenck v. United States. What Holmes actually wrote was:
“The most stringent protection of free speech would not protect a man 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.”
Prior to this the court relied on something called the “bad tendency” test which permitted restriction of speech by government if it is believed that speech has a tendency to incite or cause illegal activity.
Holmes was attempting to limit restrictions based on whether there was a “clear and present danger” as opposed to simply a “bad tendency.” His interpretation of what made up a “clear and present danger” was still too broad in that case but it was an attempt to limit free speech restrictions.
Despite it’s use in Schenck, and Justice Louis Brandeis later joining Holmes in supporting the “clear and present danger” test, it was subsequently referenced but not formally adopted by the court which continued to mostly use the “bad tendency” test.
In 1949’s Terminiello v. City of Chicago Justice William O. Douglas wrote:
“The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon... it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected… That is why freedom of speech, though not absolute... is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”
In 1951’s Dennis v. United States, Judge Learned Hand reformulated the clear and present danger test in saying:
“In each case [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.”
Chief Justice Fred Vinson wrote:
“Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.”
Justices Hugo Black and William O. Douglas dissented with Black writing:
“These petitioners were not charged with an attempt to overthrow the Government. They were not charged with overt acts of any kind designed to overthrow the Government. They were not even charged with saying anything or writing anything designed to overthrow the Government. The charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The indictment is that they conspired to organize the Communist Party and to use speech or newspapers and other publications in the future to teach and advocate the forcible overthrow of the Government. No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I believe the First Amendment forbids.”
A 1957 case, Yates v. United States, largely rendered the broad conspiracy provisions of the Smith Act on which the Dennis case was based, unenforceable though it did not fully overrule Dennis.
Finally, in 1969, the court in Brandenburg v. Ohio further restricted limitations on free speech by instituting the “imminent lawless action” test which remains the standard of the court today.
In a per curiam opinion (the court issuing an opinion as an institution rather than that of an individual Justice) wrote:
“These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Brandenburg effectively threw out Dennis as well as the “bad tendency” test and in defining the new “imminent lawless action” test further refined the “clear and present danger” test which was still too broad.
This was further refined and upheld in 1973’s Hess v. Indiana, where again per curiam, the court wrote:
“‘...the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’ Brandenburg v. Ohio... See also Terminiello v. Chicago.... Since the uncontroverted evidence showed that Hess' statement was not directed to any person or group of persons, it cannot be said that he was advocating, in the normal sense, any action. And since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had ‘a tendency to lead to violence.’”
This is the current standard on free speech restrictions in United States law. You cannot be prosecuted for something you say even if your speech included "advocacy of illegal action at some indefinite future time…."
Conservative Republican Judge J. Michael Luttig referred to Donald Trump as a “clear and present danger” (present tense) during the Jan. 6 committee hearing this past week. It is clear English language to each of us what he meant by that but what does it mean in law? And has the committee shown Judge Luttig’s words to be true?
It has. He is.
As shown in the cases above, “clear and present danger” is too broad a standard (feel free to look up the cases cited all the way through Dennis and you’ll see what I mean) even though it would have limited the “bad tendency” standard had it been fully adopted by the court.
The standard is “where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
On Jan. 6 Donald Trump addressed the crowd and fired them up in opposition to the electoral vote count certifying Joe Biden as President which was about to happen in the Capital building and in particular he targeted Vice President Pence.
He had previously made various speeches and tweets setting up this situation, addressing some of them at specific individuals and groups such as the Proud Boys. In his speech that day told people to march to the Capital and to “fight.”
The speech, particularly the marching and fighting statements, skirt on “advocating, inciting, and producing imminent lawless action” and could be said to be “likely to incite or produce such action” when taken in the whole and in the circumstances of being addressed to an angry crowd that quickly became a mob as a result of his speech.
Later however, after the crowd turned mob turned riot turned violent insurrection, had breached Capital Hill defenses Trump deputy press secretary, Sarah Matthews, and Ben Williamson, senior advisor to Trump’s Chief of Staff, testified they advised Trump to tweet something to calm the crowd and urge respect for Capital Hill police.
Instead, moments later, at 2:24 Trump tweeted an attack on Vice President Pence:
"Mike Pence didn't have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!"
About which Matthews testified:
“The situation was already bad, and so, it felt like he was pouring gasoline on the fire by tweeting that.”
And in fact it was, when the tweet was read it triggered the mob both inside and outside the Capital to surge and they began to chant “Hang Mike Pence!” A temporary gallows had already been erected outside. And a Proud Boy informant identified as “W-1” has testified they would have killed Pence and Nancy Pelosi among others had they captured them.
I don’t see how a clearer definition of “advocacy... directed to inciting or producing imminent lawless action and... likely to incite or produce such action” could be described.
Trump has since maintained the same positions that lead to these events and even after the hearing this week doubled down on his attacks on Vice President Pence.
Trump over the years has said many ill-advised and hateful things. He has advocated violence and illegal actions. He has lied and continues to lie. He has used these lies to incite and fleece his mobs of supporters. All of these are protected free speech even if hateful and destructive to the nation.
“The most stringent protection of free speech would not protect a man 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.” - Justice Holmes
[note: Trump yelled “fire” at an already violent mob, probably most of whom were no more than angry rioters but some of whom were seditious conspirators of insurrection that were already breaking the law and presenting a clear and present danger to the functioning of the government of the United States of America.]
“… it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected… unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” - Justice Douglas and Justice Hughes
[note: free debate leading to peaceful change not the substantive evil of violent insurrection]
“In each case [courts] must ask whether the gravity of the "evil", discounted by its improbability, justifies such invasion of free speech as necessary to avoid the danger.” - Justice Hand
[note: “discounted by its improbability” in this case inciting an already violent, law breaking mob created a high degree of probability]
“… directed to any person or group of persons….”
[note: his speech and tweets were clearly directed at the specific group of people already involved in illegal actions and directly opposite of what he was being advised to do by his own staff in a situation already known to be out of control.]
“… except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
Trump’s actions were not protected free speech. He yelled fire directly at an insurrectionist mob in a crowded U.S. Capital putting the lives of the U.S. Vice President, U.S. Senate, U.S. House of Representatives, all their staff, Capital Hill police (many of whom were injured and some of whom subsequently did die), Secret Service, and innocent bystanders at great risk. Even more than that, by attempting to stop the lawful functioning of the government of the United States of America he attempted to overthrow that government in what was thankfully a failed coup.
He can and should be prosecuted for it as should those of his advisors and supporters that participated in the attempted coup.
