Yes, Mark Zuckerberg, You Can Shout ‘Fire’ in a Crowded Theater
Mark Zuckerberg has joined a dubious list of prominent Americans—including judges, members of Congress, and even a vice presidential nominee—who believe that you can’t yell “fire” in a crowded theater. In an interview with Joe Rogan last week, the Meta CEO attempted to justify the company’s pandemic-era censorship policies by arguing that “even people who are like the most ardent First Amendment defenders” know that there is a limit to free speech.
“At the beginning, [COVID-19 was] a legitimate public health crisis,” Zuckerberg told Rogan. “The Supreme Court has this clear precedent: It’s like, all right, you can’t yell ‘fire’ in a crowded theater. There are times when if there’s an emergency, your ability to speak can temporarily be curtailed in order to get an emergency under control. I was sympathetic to that at the beginning of COVID.”
The thing is, Zuckerberg is simply wrong when it comes to how the First Amendment works.
The common misconception that it’s illegal to shout “fire” in a crowded theater originates with a hypothetical used by Justice Oliver Wendell Holmes in the 1919 Supreme Court case Schenck v. United States.
In his opinion, Holmes wrote that “the character of every act depends upon the circumstances in which it is done,” adding that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Not only was this passage a pure hypothetical used to illustrate Holmes’ larger opinion that the First Amendment didn’t protect the dissemination of anti-draft pamphlets, but Schenck itself was overturned in 1969 by Brandenburg v. Ohio.
“To the contrary, if the theater is
Article from Reason.com
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