Falsely Shouting Fire in a Theater: How a Forgotten Labor Struggle Became a National Obsession and Emblem of Our Constitutional Faith

by Corey Robin on February 17, 2013

Did you ever wonder where the metaphor of falsely shouting fire in a theater comes from? Several years ago, I was co-writing a book about American political repression with Ellen Schrecker, the brilliant historian of McCarthyism. We came across a fantastic article by University of Texas legal scholar Lucas Powe that made a strong case for where Oliver Wendell Holmes, who came up with the metaphor, might have gotten the idea for it. Ellen followed up Powe’s hypothesis with some extensive sleuthing in the Michigan archives, and what follows is the result of her research and our writing.

Sadly, Ellen and I never finished that book. We did, however, write drafts of a few chapters, prologues and preludes, and a introduction . What you’re about to read was meant to be a prologue to part 1 of the book, in which we were going to analyze the connection between political repression and national and domestic security (Part 2 was supposed to look at the role of violent and non-violent sanctions in repression; Part 3 would have examined the full array of legal, illegal, and extra-legal modes of repression). Security and repression is a subject I’ve written about at great length elsewhere, and some of the discussion below presumes the theory I have developed in those writings.

In any event, the possible true story of the false shout of fire in a theater is a great story on its own, and Ellen and I both wanted to make sure that it saw the light of the day. So with Ellen’s permission I’m reprinting our piece here.

For the sake of readability, I have eliminated all of our footnotes. But for those who want to follow up the sources, I’ve added a bibliography here that lists all the sources we cite and consulted in writing this piece, and I’ve posted a pdf of the original text, which contains all the footnotes.

• • • • •

All public facts are to be individualized, all private facts are to be generalized.

– Ralph Waldo Emerson, “History

Charles T. Schenck is remembered today less for what he did than for the image he helped inspire:  that of a man falsely shouting fire in a theater and causing a panic.  That image was first offered by Supreme Court Justice Oliver Wendell Holmes as an illustration of what Schenck did during the First World War, and it has since become a fixture of our discussions about the delicate balance between freedom and security, liberty and order, particularly though not exclusively in times of war.

It’s a pity that we remember the metaphor rather than the man, however, for the gap between what Schenck did and what Holmes said he did is considerable—and instructive.

Schenck was the general secretary of the Socialist Party in Philadelphia during the First World War.  Unlike their sister parties in Western Europe, America’s Socialists firmly opposed the war, even after the United States entered it in April 1917.  That summer, Schenck and his Philadelphia comrades launched a campaign against the draft.  They composed a two-sided leaflet that attacked the draft as unconstitutional and called for people to join the Socialist Party and persuade their representatives in Congress to repeal it.  If the leaflet’s language was strong—“a conscript is little better than a convict…deprived of his liberty and of his right to think and act as a free man”—it was also conventional, couched in a vernacular many would have found familiar.  One side proclaimed “Long Live the Constitution of the United States.” The other urged people to “Assert Your Rights!”

Schenck and his comrades made 15,000 leaflets and mailed most of them to men in Philadelphia who had passed their draft board physicals.  It’s unclear how many actually received the leaflet—hundreds were intercepted by the government—and no one produced evidence of anyone falling under its influence.  Even so, Schenck and four others were arrested and charged with “causing and attempting to cause insubordination…in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.”  Two of the defendants—Schenck and another party leader—were found guilty.  Schenck’s case was argued before the Supreme Court in January 1919, and the Court’s unanimous decision to uphold the conviction, written by Holmes, was delivered in March.

Holmes’s opinion was a mere six paragraphs.  But in one sentence he managed to formulate a test for freedom of speech that would endure on the Court in some form until 1968—“[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”—and in another to draw an illustration of the test that remains burned in the public consciousness to this day: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

With his disdain for socialists and rabble-rousers, Holmes would not have been pleased to see his name posthumously linked to Schenck’s.  But with his equally powerful sense of realism, he undoubtedly would have conceded the truth of Harry Kalven’s observation, in 1988, that “Schenck—and perhaps even Holmes himself—are best remembered for the example of the man ‘falsely shouting fire’ in a crowded theater.”  It was that kind of metaphor: vivid, pungent, and profoundly misleading.

Drawing on nearly forty years of his own scholarship and jurisprudence, Holmes viewed Schenck’s leaflet not as an instance of political speech but as a criminal attempt to inflict harm. In the same way that a person’s shout of fire in a theater would cause a stampede and threaten the audience with death so would Schenck’s leaflet cause insubordination in the military, hamper the war effort, and threaten the United States and its people with destruction.

Holmes knew that words were not always words:  sometimes they ignited fires—and not just the metaphorical kind.  In 1901, as chief justice of the Massachusetts Supreme Court, Holmes had upheld the conviction of a man who tried to persuade his servant to set fire to his own home in order to collect on the insurance. Just as that man’s words threatened the safety and well being of his neighbors so did Schenck’s threaten the safety and well being of his, or so Holmes believed.

Whenever the government suppresses opinions or beliefs like Schenck’s, it claims to be acting on behalf of value—national security, law and order, public safety—that are neutral and universal:  neutral because they don’t favor one person or group over another, universal because they are shared by everyone and defined by everyone in the same way.  Whatever a person may believe, whatever her party or profession, race or religion, may be, she will need to be safe and secure in order to live the life she wishes to live.  If she is to be safe and secure, society must be safe and secure:  free of crime and violent threats at home or abroad.  The government must be safe and secure as well, if for no other reason than to provide her and society with the safety and security they need. She and society are like that audience in Holmes’s theater:  whether some are black and others white, some rich and others poor, everyone needs to be and to feel safe and secure in order to enjoy the show.  And anyone who jeopardizes that security, or the ability of the government to provide it, is like the man who falsely shouts fire in the theater. He is a criminal, the enemy of everyone.  Not because he has a controversial view or takes unorthodox actions, but because he makes society—and each person’s pursuits in society—impossible.

But Americans always have been divided—and always have argued—about war and peace, what is or is not in the national interest.  What is security, people have asked?  How do we provide it?  Pay for it?  Who gets how much of it?  The personal differences that are irrelevant in Holmes’s theater—race, class, gender, ethnicity, residence, and so on—have had a great influence in the theater of war and peace. During the First World War, Wall Street thought security lay with supporting the British, German-Americans with supporting the Kaiser, Socialists with supporting the international working class.  And while the presence or absence of fire in Holmes’s theater is a question of objective and settled fact, in politics it is a question of judgment and interpretation.  During the war, Americans could never decide whether or not there was a fire, and if there was, where it was—on the Somme, the Atlantic, in the factories, the family, the draft—and who had set it:  the Kaiser, Wilson, J.P. Morgan, Teddy Roosevelt, the Socialists, the unions, the anarchists.  Without agreement on these questions, it wasn’t clear if Schenck was the shouter, the fire, or the fireman.

There are fires in politics, but where and what they are, who set them, how they can be put out, and who will put them out—these are political questions, the subjects of controversy and debate.  How we answer these questions—and whether they become questions at all (for not all threats and dangers become items of public discussion)—will reflect in part who has power and who does not, whose ideas are influential and whose marginal, whose interests are salient and whose negligible.

In politics, we’re never in Holmes’s theater, enjoying the show until someone comes along and ruins the evening.

Or maybe we are.

On Christmas Eve in 1913, the Ladies Auxiliary of the Western Federation of Miners local in Calumet, Michigan, held a party for the children of copper miners who had been on strike against their employer, the Calumet and Hecla Mining Company, since July. About 500 children and 175 adults packed the second-floor auditorium of the Italian Hall in Red Jacket, a small mining town on the Keweenaw Peninsula, which juts out onto Lake Superior.  The miners were mostly immigrants from the peripheries of Europe—Finland, Italy, and the Balkans—but their children were one in their quest for the nuts, candy, and presents from Santa that the Ladies Auxiliary had provided.

As the children lined up in the front of the large room, someone shouted “Fire.”  Nobody smelled smoke or saw flames, but the panicked children and adults rushed to the main exit at the back of the hall.  They raced down the stairway, a few stumbled on the steep steps, others piled on top of them, and still others, unable to stop the onrush behind them, piled on top of the pile.

The stampede was over in minutes.  The tangle of bodies in the stairway was so dense that rescuers out on the street could not pull any victims out from the bottom.  They had to go through the hall and lift them from the top.  Seventy-four people died, most of them children, some still clutching their Christmas presents.

To this day, no one knows who, if anyone, shouted fire.  One possible explanation is that a child had fainted and that someone cried for water.  Water—or its Finnish equivalent vettä—sounds like watra, which means fire in Serbo-Croatian.  Many witnesses, however, claim that they saw a man with a Citizens’ Alliance—a local anti-union group of businessmen—button on his lapel enter the hall, shout “fire,” and run down the stairs. To their dying day, survivors claimed that the stampede was the work of a company man.

That was the version of the story that Woodie Guthrie immortalized in his 1939 ballad “The 1913 Massacre”:

The copper-boss thugs stuck their heads in the door

One of them yelled and he screamed, ‘There’s a fire!’

A lady, she hollered, ‘There’s no such a thing!

Keep on with your party, there’s no such a thing.’

A few people rushed, and it was only a few

‘It’s only the thugs and the scabs fooling you.’

A man grabbed his daughter and carried her down

But the thugs held the door and he could not get out.

And then others followed, a hundred ore more

But most everybody remained on the floor.

The gun-thugs they laughed at their murderous joke,

While the children were smothered on the stair by the door.

And it might well have been the version Holmes would have read about.  The Calumet fire was widely reported throughout the country—Congress held hearings about it and the copper strike in 1914—and Holmes was an avid reader of newspapers.  He also loved the theater and had a passion for fires.  He told a friend “that whenever there was a fire in any direction he would be glad to go to it with me even if he had to be routed of bed.”  His friend added that “it would not have surprised me had he left the Bench to witness a fire while the Court was in session.”

We’ll never know for sure if Holmes knew about the Calumet tragedy and whether it inspired his metaphor, though University of Texas legal scholar Lucas Powe has made a strong case for that claim.

Yet even in Calumet, in a crowded hall on Christmas Eve with children unwrapping their presents in peacetime, the metaphor fails.  The strikers in the Italian Hall and their families were united, but what brought them together was a bitter standoff with Calumet and Hecla about wages, safety in the mines, the introduction of new machinery, the pace of work, and, most of all, whether the workers would have a union or not.

For decades, Alexander Agassiz, the Boston Brahmin who ran the company, had refused to negotiate with the miners, declaring in 1874, “We cannot be dictated to by anyone….Wages will be raised whenever we see fit and at no other time.”  Forty years later, Calumet and Hecla was still refusing to negotiate:  as the chair of a congressional committee said, “There is little we can do to end the strike.  The operators will not employ a single union man.  The remaining strikers can go back to work if they surrender their union cards, otherwise they will be compelled to some other part of the country to earn a livelihood.”

Set aside the controversy about whether or not there was a shout of fire and who the shouter was (though the fact that there was a controversy indicates how difficult it is to apply Holmes’s metaphor—in which there is not supposed to be any controversy—to politics).  If there was a shout of fire, and if the shouter was indeed a member of the Citizens’ Alliance, he would hardly have been the universal enemy of Holmes’s metaphor; he would have been more like John Brown, a terrorist to some, a hero to others.

Rather than unite a divided Keweenaw Peninsula, the tragedy at the Italian Hall divided it even further.  After the stampede, the wives of the Citizens’ Alliance went house to house to dispense to the survivors the $25,000 the anti-union group had raised; doors were slammed in their faces.  “The Western Federation of Miners will bury its own dead,” declared union president Charles Moyer, who had been in the region since September to monitor the strike’s progress.  “The American labor movement will take care of the relatives of the deceased.  No aid will be accepted from any of these citizens who a short time ago denounced these people as undesirable citizens.”

On December 26, a group of fifteen men burst into Moyer’s hotel room.  The men “piled on me like a pack of wolves,” he later testified, “kicking and striking and cursing.”  A revolver accidentally went off, hitting Moyer in the back and shoulder.  The men grabbed Moyer and another union official, dragged them through town to the railroad station, put them on board a train for Chicago, and warned Moyer “if you ever come back to this district again we will hang you.”

The following day, local authorities arrested the editor and several employees of the local radical Finnish newspaper Tyomies, which first publicized the accusation that the Citizens’ Alliance had caused the stampede, and charged them with “conspiracy to publish mis-statements calculated to incite riot.”  Two weeks later, on January 15, 1914, the Houghton County Grand Jury indicted Moyer and 37 other unionists for participating in a conspiracy that “instituted a general strike…with the purpose and intent of causing and compelling the employees of the companies…to cease work and to shut down and prevent the operation of the mines.”  Nine days after that, the same grand jury refused to indict Moyer’s attackers.

Holmes’s metaphor was supposed to illustrate the unity of society in the face of an alien danger and the right of the government, grounded in neutral and universal principles, to suppress that danger. But Calumet, like Schenck, reveals the opposite:  a society divided—not just in the face of danger but over the face of danger—and a government selectively deciding whom to protect and from what to protect them.

While Holmes’s metaphor obfuscates the realities of Calumet and Schenck, it also reveals a deeper nexus between them.  Why, after all, might Holmes have remembered and reached back to an incident from the nation’s bitter labor history to describe an equally bitter conflict over war and peace?

Perhaps it is because there is an intimate connection between public safety and private authority.  A safe and secure nation, many believe, is publicly united—and privately obedient.  Workers submit to employers, wives to husbands, slaves to masters, the powerless to the powerful.  A safe and secure nation is built on these ladders of obedience, in its families, factories, and fields.  Shake those ladders and you threaten the nation.  Stop people from shaking them and you protect it.

In Billy Budd, Herman Melville tells the story of the Bellipotent, a British naval ship on her way to the Mediterranean to fight the French.  The year is 1797, and the French enemy is in possession of—or possessed by—a revolutionary ideology of freedom and equality.  The British navy is writhing with discontent, most notably over the impressments of its sailors.  Thanks to the “live cinders blown across the Channel” from revolutionary France, writes Melville, that discontent has “been ignited into irrational combustion.”  Mutiny, and the threat of mutiny, is everywhere.  One in particular, the Nore Mutiny of May 1797, is “a demonstration more menacing to England than the contemporary manifestoes and conquering and proselyting armies of the French Directory.”

Disorder at home and danger abroad, domestic obedience and international security, safety and submission, insecurity and revolt—all are seamlessly intertwined in this tale about the British navy during the French Revolution that is also a tale about the American struggle over slavery and perhaps about the labor movement as well. (Melville began Billy Budd in 1886, nine years after the Great Upheaval.  1886 saw a massive strike wave—1400 strikes—that culminated in the Haymarket tragedy.  Melville was still working on Billy Budd in 1891, when he died, just one year shy of the showdown at Homestead.)

Like the plantation and the factory, the navy, in Melville’s telling, is a labor-intensive operation:  the “innumerable sails and thousands of cannon” of the ship “worked by muscle alone.”  Like the Nore Mutiny, slave rebellions throughout the Americas were sparked by the French Revolution, an influence Melville took up more directly in Benito Cereno.  And like the rhetoricians of both slavery and abolition, Melville resorted to the language of fire to describe the all-encompassing threat of a conflict over power and authority: the Nore Mutiny was to the British Empire, he wrote, “what a strike in the fire brigade would be to London threatened by general arson.”

“Men feared witches and burned women,” wrote Justice Brandeis in Whitney v. California.  That’s true, but men also feared women and burned witches.  It is that traffic—between the uppity and the unsafe, the insurgent and the insecure, the immoral and the dangerous—and the alchemy by which a challenge to a particular social order becomes a general threat to the whole, that is the real story of how a fire in a theater, which may or may not have happened in the way various men and women think it happened, became a national obsession and an emblem of our constitutional faith.


William Beck, “Law and Order During the 1913 Copper Strike.” Michigan History LIV (Winter 1970).

Jeremy Brecher, Strike! Cambridge: South End Press, 1997.

Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”:  Struggles for Freedom of Expression in American History. Durham:  Duke University Press, 2000.

The Finnish Experience in the Western Great Lakes Region:  New Perspectives, ed. Michael G. Karni, Matti E. Kaups, and Douglas J. Ollila, Jr. Turku, Finland:  Institute for Migration, 1975.

William B. Gates, Jr., Michigan Cooper and Boston Dollars:  An Economic History of the Michigan Cooper Industry. Cambridge:  Harvard University Press, 1951.

House of Representatives Subcommittee of the Committee on Mines and Mining, Hearings on “Conditions in the Copper Mines of Michigan,” 63rd Congress, 2nd session (Washington: Government Printing Office, 1914).

Michael H. Hunt, Ideology and U.S. Foreign Policy. New Haven:  Yale University, 1987.

Vernon H. Jensen, Heritage of Conflict:  Labor Relations in the Nonferrous Metals Industry Up to 1930. New York:  Greenwood, 1968.

Larry Lankton, Cradle to Grave:  Life, Work, and Death at the Lake Superior Copper Mines. New York:  Oxford University Press, 1991.

Herman Melville, Billy Budd, Sailor, in Melville’s Short Novels, ed. Dan McCall. New York:  Norton, 2002.

Stephen H. Norwood, Strike-breaking & Intimidation:  Mercenaries and Masculinity in Twentieth-Century America. Chapel Hill:  University of North Carolina Press, 2002.

H.C. Peterson and Gilbert C. Fite, Opponents of War, 1917-1918. Seattle:  University of Washington Press, 1957.

Richard Polenberg, Fighting Faiths:  The Abrams Case, the Supreme Court, and Free Speech. New York:  Viking, 1987.

L.A. Powe, Jr., “Searching for the False Shout of ‘Fire.’” Constitutional Commentary 19 (Summer 2002).

David M. Rabban, Free Speech in Its Forgotten Years. New York:  Cambridge University Press, 1997.

Yosal Rogat and James O’Fallon, “Mr. Justice Holmes:  A Dissenting Opinion—The Speech Cases.” Stanford Law Review 36 (July 1984).

Schenck v. United States, 249 U.S. 47 (1919)

Arthur W. Thurner, Rebels on the Range:  The Michigan Copper Miners’ Strike of 1913-1914. Lake Linden, Michigan:  John H. Forster Press, 1984.

Peter Trubowitz, Defining the National Interest:  Conflict and Change in American Foreign Policy. Chicago:  University of Chicago Press, 1998.

Whitney v. California, 274 U.S. 357 (1927)



snuh 02.18.13 at 1:28 am

that was very interesting indeed.

personally the thing that always fascinated me about OWH’s “falsely shouting fire in a theater” metaphor is not the “fire” but the “falsely.” particularly that that word, which does all the work in the metaphor, is so often lopped off when people refer to the it (not here, obviously).


Sandwichman 02.18.13 at 4:46 am

Fascinating in its own right but more so because I am researching an event that occurred just 10 months later, the passage of the Clayton Antitrust Act, signed by Wilson on October 15, 1914, the labor provisions of which Samuel Gompers hailed as Labor’s Magna Carta. Here’s the first few paragraphs:

Labour is (not) a Commodity/b>

“Labour is a commodity like every other, and rises or falls according to the demand.” – Edmund Burke

“Labor is not a commodity.” – ILO Declaration of Philadelphia

“We must now examine more closely this peculiar commodity, labour-power.” – Karl Marx

Organized labor’s millennium lasted exactly six years, nine months, one week and five days. On October 15, 1914, U.S. President Woodrow Wilson signed the Clayton Antitrust Act. Samuel Gompers, founding president of the American Federation of Labor, hailed the labor provisions of that law as “the most comprehensive and most fundamental legislation in behalf of human liberty that has been enacted anywhere in the world”, ” the foundation upon which the workers can establish greater liberty and greater opportunity for all those who do the beneficent work of the world” and the “industrial Magna Carta upon which the working people will rear their structure of industrial freedom.” Gompers gushed that the words contained in Section 6 of the Act, “That the labor of a human being is not a commodity or article of commerce,” were “sledge-hammer blows to the wrongs and injustices so long inflicted on the workers.”

On January 3, 1921, in the case of Duplex Printing Press Co. v. Deering, the U.S. Supreme Court ruled that “there is nothing in the section to exempt such an organization [i.e., union] or its members from accountability where it or they depart from its normal and legitimate objects and engage in an actual combination or conspiracy in restraint of trade,” thereby confirming an opinion long held by objective observers that the labor provisions of the Clayton Act didn’t actually exempt unions from court injunctions. In the meanwhile, Gompers journeyed to Paris to lobby for virtually identical language in the Treaty of Versailles, affirming the official non-commodity status of workers everywhere: “Labour should not be regarded merely as a commodity or article of commerce.” In 1944, the International Labour Organization reiterated as the first principle of its Declaration of Philadelphia that “Labor is not a commodity.”

The everyday experience of working people, economic policies of governments, bargaining priorities of trade unions and theoretical models of economists refute the idealistic maxim that labor is not a commodity. An early rationale for the proposition was given in 1834 by William Longson of Stockport in his evidence to the House of Commons Select Committee on Hand-Loom Weavers:

…every other commodity when brought to market, if you cannot get the price intended, it may be taken out of the market, and taken home, and brought and sold another day; but if a day’s labour is offered on any day, and is not sold on that day, that day’s labour is lost to the labourer and to the whole community…

Longson concluded from these observations of labor’s peculiarities that, “I can only say I should be as ready to call a verb a substantive as any longer to call labour a commodity.”

Karl Marx was emphatic about the peculiar historical nature of labor – or, more precisely, labor-power – as a commodity. Rather than reject the label outright, though, he chose to examine it more closely. Marx observed that for labor-power to appear on the market as a commodity, the sellers must first be free to dispose of it (but only for a definite period) and also must be obliged to offer labor-power for sale because they are not in a position to sell commodities in which their labor is embodied.

Connecting Longson’s observation to Marx’s, it would seem as though, aside from moral strictures, one of the qualities that most distinguishes labor-power from other commodities – its absolute and immediate perishability – is what compels its seller to submit unconditionally to the vagaries of demand. To paraphrase Joan Robinson, the misery of being regarded as a commodity is nothing compared to the misery of not being regarded at all.

So if labor-power is not a commodity, or is only one due to peculiar and rather disagreeable circumstances, what more properly is it, then? …


Sandwichman 02.18.13 at 6:29 am

That should be “Organized labor’s millennium lasted exactly six years, two months, two weeks and five days.”


Z 02.18.13 at 10:05 am

Thank you for this very well written and interesting story.


Mao Cheng Ji 02.18.13 at 10:17 am

“charged with “causing and attempting to cause insubordination…in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.””

I see that the law is called the ‘Espionage Act of 1917′. Almost a hundred years old, and still useful.


Among those who have been charged with offenses under the Act are former Watch Tower Bible & Tract Society president Joseph Franklin Rutherford, communists Julius and Ethel Rosenberg, Pentagon Papers whistleblower Daniel Ellsberg, and alleged cablegate whistleblower Bradley Manning.


Harald Korneliussen 02.18.13 at 10:19 am

I’d buy this book, Corey Robin.


Phil 02.18.13 at 2:06 pm

snuh @1 picks up on an interesting point. I’ve never heard the phrase quoted as ‘falsely shouting Fire!’ and heard it many times without the first word. The elision of ‘falsely’ is peculiar – shouting ‘Fire!’ in a crowded theatre which was on fire would have costs and might not be the best way to deal with the situation, but it wouldn’t be criminally irresponsible. Perhaps there’s an underlying rhetorical slippage, from “speech acts aiming to cause havoc aren’t protected as free speech” to “speech acts which turn out to cause havoc won’t retrospectively have been protected” – a much broader and more ‘chilling’ admonition.


Mao Cheng Ji 02.18.13 at 2:21 pm

I don’t find the description of Mr. Holmes attitude very convincing. I suspect his thinking was more along the lines of “elections have consequences!”, “this is a Republic, not a democracy!”, and similar mantras.

It’s like this: during an election campaign we discuss the issues. Then we vote. And once someone is elected, there is no good reason to argue anymore; certainly no good, innocent reason to sabotage any actions of the duly elected government, especially in a time of war. Get along with the program; your next chance to bicker will come, with the next election campaign.

Also known as Lenin’s ‘democratic centralism’.


JP Stormcrow 02.18.13 at 4:00 pm

Get along with the program; your next chance to bicker will come, with the next election campaign.

Theoretically. But sometimes it is important to read the fine print in the platform.

When democracy granted democratic methods for us in the times of opposition, this was bound to happen in a democratic system. However, we National Socialists never asserted that we represented a democratic point of view, but we have declared openly that we used democratic methods only in order to gain the power and that, after assuming the power, we would deny to our adversaries without any consideration the means which were granted to us in the times of opposition.



mud man 02.18.13 at 5:13 pm

Phil @7:
The story seems to show that, mutatis mutandis, shouting “Fire!” in a theater that really is on fire actually *is* criminally liable. Many think the present illusion of peace & prosperity is more important than peace itself, most particularly including the theater managers.


arthur 02.18.13 at 5:39 pm

One report sugests that the the metaphor is so famous that it makes theatregoers reluctant to shout “fire” even when the theatre is, in fact, on fire.


John Quiggin 02.18.13 at 7:14 pm

Great post!


Mitchell Freedman 02.18.13 at 7:22 pm

Bravo to Sandwichman for his great analysis of labor, commodification and one of Marx’s central and enduring insights.


adam.smith 02.18.13 at 8:15 pm

great post indeed


ex 02.18.13 at 8:42 pm

This is great! I seek the longer (?) version of Corey’s linked Jacobin article. It is no 6 here http://muse.jhu.edu/books/9780822978138?auth=0 but, sadly, I don’t have MUSE access. Has anyone seen a copy floating around freely online?


Salient 02.18.13 at 9:05 pm

Sadly, Ellen and I never finished that book.

But we need that book! All the more so after seeing this piece of it. I don’t suppose there’s any hope of reviving the project long enough to at least put together Parts 2 and 3..?


mpowell 02.18.13 at 9:50 pm

Very interesting post. I would make the observation that this example illustrates the inherent difficulty with actual people applying law, even good law. It is hard without examples to understand how badly Holmes’ rule could be applied. But clearly there is always an intepretation of the law or it’s principles that can be found to prosecute a hated minority if the majority or those wielding power are willing to twist words and their meaning far enough. I do believe better constructed rules and principles generally make this more difficult, at least.


adam.smith 02.18.13 at 10:30 pm

(as for the book – why not publish parts of it as one of those shorter e-books that are all the rage now. I know it’s the favorite form of publication of the neolibs now, but that doesn’t necessarily make it a bad idea).


skidmarx 02.19.13 at 12:45 am

Abbie Hoffman enjoined us to shout “theater” in a crowded fire.


Tom Hurka 02.19.13 at 1:03 am

Fascinating details — many thanks — but I don’t know why you find any commitment to “unity” in Holmes’s metaphor or in his 1919 opinion. Certainly the two sentences you quote mention no such thing.

I therefore don’t see any tension between the metaphor and the Calumet case. Whoever shouted “fire” at the party was creating a “clear and present danger,” i.e. one with highly likely effects now rather than in some remote future. And those effects were of “substantive evils that Congress has a right to prevent,” i.e. death and serious injury. It’s not as if Congress can prevent only those deaths everybody is united in opposing. Was a law against lynching beyond Congress’s power so long as some people wanted to lynch?

The fact that the Calumet case involved political division therefore seems irrelevant to Holmes’s test, which absolutely condemns whoever shouted “fire.” So I don’t see why you think the case shows that his metaphor “fails.” (That Holmes used his test to reach a wrong decision in Schenk doesn’t say anything about the test itself, which has been used to reach much better decisions since.) What fails is only your unsupported claim that the metaphor “was supposed to illustrate the unity of society in the face of an alien danger.” There’s no hint of that in what you quote.


Sandwichman 02.19.13 at 1:42 am

Thanks, Mitchell Freedman @13. I’ve now posted the rest of “Labor is (not) a Commodity” at Ecological Headstand.

This will soon be followed by a second part, with the somewhat presumptuous title, “The New Charter of Industrial Freedom”.


Matt 02.19.13 at 2:53 am

That Holmes used his test to reach a wrong decision in Schenk doesn’t say anything about the test itself, which has been used to reach much better decisions since.

I _mostly_ agree w/ Tom Hurka’s point, but it is worth noting that the “clear and present danger” test got the answer wrong, and clearly so, I’d think, in _many_ important cases, not just Schenk. The Debs case, decided not long after, is another crystal clear example, as are many cases related to communism and immigration soon after WWII. Holmes himself came to apply the test in a better way, though there is more than a bit of reason to think that by this time he was not as strong mentally as he had been before, and was largely under the influence (for the better) of Louis Brandeis. In fact, there’s good reason to think that most of Holmes’s reputation among liberals is really due to Brandeis’s influence on the by then quite elderly Holmes.


Corey Robin 02.19.13 at 4:52 am

Tom Hurka at 20: In actual fact, the clear and present danger test was extremely problematic, as the Court came to recognize, finally, in the Brandenburg decision when it came up with a much stricter test of what kind of speech could be banned. As Matt points out above, some version of the clear and present danger test was repeatedly used by the Court between the Schenck decision and the McCarthy years to reach decisions that were hostile to freedom of speech. And one of the reasons it proved to be such a bad test can be understood by that metaphor of falsely shouting fire in a theater. As I tried to explain in my post, the metaphor presumes that there are clear and obvious threats to the entire nation on the order of a fire in a theater. But throughout most of American history those threats have been anything but clear and obvious to the protagonists involved. Indeed, the two most obvious candidates for threats to the survival of the republic — the War of 1812 and the Civil War — were two of the most divisive wars in American history (the Civil War, by definition!). In fact, in the case of the Civil War, it was precisely the division over what truly threatened American society most — a slaveocracy or a party bent on abolishing it — that made the war in the first place. Turning to Calumet, the handling of the case in the wake of the stampede suggests that people (and their elected officials) were indeed divided over where the real threat to society lay (in the man who shouted fire or in the striking workers who gathered to celebrate in the first place). My point is that given these disagreements, officials will tend to draw their cues about what is or isn’t a fire from those social forces that have greater power — but that what allows them to do so in part is the illusion of clarity and agreement (that’s the unity part) about what is or isn’t a fire or a threat or a danger. Which brings me to your point re Congress and lynching. Between 1882 and 1968, there were almost 200 anti-lynching bills introduced in Congress. Not a single one made it to the President’s desk. So, yes, it did indeed prove to be beyond Congress’ power to pass a law against lynching so long as there were people around with a hankering to lynch.


UserGoogol 02.19.13 at 12:34 pm

So wait, is literally falsely yelling fire in a crowded theater with intent to cause an immediate panic illegal or not? Seems like it should be some kind of fraud or something at least. Literally yelling fire has a certain immediacy and lack of political content which metaphorically literally yelling fire doesn’t, and is also a relatively straightforward dispute of fact.


Tom Hurka 02.19.13 at 12:37 pm

It was de facto beyond Congress’s power to pass an anti-lynching bill but it wasn’t de jure beyond Congress’s power, and Holmes was clearly talking about its de jure power.

I granted that the test could be and was used to make bad decisions. That doesn’t impugn the test itself, which seems to me to get things right. Someone’s speech is legitimately limited when, but only when, it will lead to harm not in the future, after other people decide to act on it, but right now and by an almost automatic response, as in the “fire” example. People don’t deliberate about whether to exit from the theatre; they just do it.

And I still don’t see any reference to social unity or “the whole nation” in Holmes’s metaphor. After all, the person who shouts “fire” in a theatre is only threatening the tiny portion of the nation present in the theatre.


Corey Robin 02.19.13 at 1:31 pm

Let’s remember the context of Holmes’s decision and his use of the metaphor: he’s talking about a man who is urging possible draftees to vote Socialists into Congress who will repeal the draft on the grounds that it is unconstitutional. So what, for Holmes, is the “fire” in this case? It’s Schenck. And who is threatened by the fire? The nation. That’s the point of the analogy. And the reason the analogy fails, not just in this case but in so many of the cases in which the clear and present danger test was invoked, is that in politics there is seldom if ever a self-evident fire threatening the entire nation precisely b/c what is or is not a fire is a subject of political contestation (again, I think the examples of the War of 1812 and the Civil War are very instructive here). Holmes, in other words, was invoking an image of a non-political crime to describe the threat of politically dangerous speech. What’s more, he would not be the last to do so. That’s the problem with the test. And that’s part of the reason why the Court ultimately scrapped it.


David Kaib 02.19.13 at 2:19 pm

Thanks for sharing this. It should be (yet it is not) obvious that the analogy between the theater and the world beyond was terrible, but it’s interesting to see the problems in the source metaphor.

For those who are defending the clear and present danger test, I wonder if they can provide an example where you think it worked?

Also Tom, I think you are confusing the metaphor with the test.


CJColucci 02.19.13 at 3:47 pm

Anything that aspires to be a “test” in Constitutional law is extremely, though not infinitely, malleable. The clear and present danger test did only a little, and the Brandenburg variation did only somewhat more, to restrain judges from issuing expression-suppressing decisions. Tests don’t drive decisions, only the rationale for them. A judge who saw clearly that the “danger” in Schenck was only that the people, who had a right to decide such things, might be persuaded to repeal conscription laws, would have struck down the conviction whatever “test” was then current, and would have found the appropriate form of words to make it fit. A judge who didn’t see that would have affirmed whatever the test and made it fit.
To be sure, a case can come along that is so outrageous that a decision according to the judge’s propensities “just won’t write,” and sometimes — not often — the propensity gives way to the “test.”


Salem 02.19.13 at 6:17 pm

Let’s remember the context of Holmes’s decision and his use of the metaphor: he’s talking about a man who is urging possible draftees to vote Socialists into Congress who will repeal the draft on the grounds that it is unconstitutional. So what, for Holmes, is the “fire” in this case? It’s Schenck. And who is threatened by the fire? The nation. That’s the point of the analogy.

I think this misunderstands Holmes’s metaphor. He is not saying that Schenck is the “fire.” Rather, the “fire” is unconstitutional laws and abrogations of liberty. Schenck is the man shouting “fire” (likening the draft to slavery), and per Holmes this is a false claim. Moreover, this speech is in a “crowded theatre” (i.e. to draftees in a time of war). So the metaphor is that draftees will hear Schenck’s message, engage in civil disobedience to the draft, and this will critically weaken the military while at war, all based on a false claim of unconstitutionality.

Now certainly there are matters of political contestation there. But I think Holmes’s metaphor is much less far-reaching than you make it out to be. Indeed, if there is “seldom if ever a self-evident fire threatening the entire nation” then the man who falsely shouts fire is if anything even more blameworthy.


Salient 02.19.13 at 6:21 pm

To be sure, a case can come along that is so outrageous that a decision according to the judge’s propensities “just won’t write,” and sometimes — not often — the propensity gives way to the “test.”

Okay, but I would replace “is so outrageous” with “is so far removed from any non-outrageous interpretation of the rule” to emphasize what triggers the outrageousness. The intensely complicated trick is to construct a test such that this usually happens (and then get the test into usage/precedent).


CJColucci 02.19.13 at 6:33 pm

Fair enough.


Corey Robin 02.19.13 at 6:46 pm

Salem at 29: You’re right; I wrote that too quickly. Schenck is not the fire here. But you’re wrong when you say that for Holmes “the ‘fire’ is unconstitutional laws and abrogations of liberty. Schenck is the man shouting ‘fire’ (likening the draft to slavery), and per Holmes this is a false claim.” That is not at all what Holmes says in the decision. (Nor would it fit with his overall jurisprudence, for it would suggest that any wrong claim re unconstitutionality is the equivalent of a false claim of fire: i.e., whoever is on the opposing side of any Supreme Court decision — including members of the Supreme Court themselves — would be like Schenck falsely shouting fire.) What Holmes actually writes is this: “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right. It seems to be admitted that, if an actual obstruction of the recruiting service were proved, liability for words that produced that effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.” No mention at all of the truth or falsity of the claim; merely the utterance of the statement itself, regardless of its truth, creates a clear and present danger in the context of war. Or as he says elsewhere in the opinion: these are “words that may have all the effect of force.” Again, the issue is the context, not the truth or falsity of the claim, which he nowhere discusses in the opinion. The reason he inserted that “falsely” in the discussion of shouting fire has much less to do with his view of the constitutionality of the draft than his view of the law of criminal attempts, which he had written about at great length in his book The Common Law.


Salem 02.19.13 at 8:17 pm


“It would suggest that any wrong claim re unconstitutionality is the equivalent of a false claim of fire… Again, the issue is the context”

I agree that part of the issue is the context. But the metaphor works perfectly for this; it is quite acceptable to call up the Fire Brigade and report a fire you genuinely believe exists, even if later it turns out you were mistaken. If Schenck had limited himself to challenging the constitutionality of the draft through the courts, or even to purely democratic campaigning, he would likely have been OK. But the courts thought (and if we are honest, we must concede) that Schenck’s speech indicated it was trying to engender civil disobedience. Hence “in a crowded theatre.” See the lines immediately above the famous quote:

“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.” (emphasis mine)

“Again, the issue is the context, not the truth or falsity of the claim, which he nowhere discusses in the opinion. The reason he inserted that “falsely” in the discussion of shouting fire has much less to do with his view of the constitutionality of the draft than his view of the law of criminal attempts”

But the issue of the draft’s constitutionality was not before the court. The Selective Draft Law Cases had already been decided (unanimously) the previous year. If the draft had been held unconstitutional, the metaphor would be completely inapposite (and indeed, Schenck’s conviction would have been reversed). The “falsely” is absolutely key to the metaphor; Holmes writes:

“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.” (emphasis mine)

Clearly, if these are not evils that Congress has any right to prevent then this question must be answered in the negative. The very notion that obstructing the draft can be a crime rests on the constitutionality of the draft in the first place, and although that question was not before the court, it underlies Holmes’s analysis. Someone who sees a fire in a crowded theatre and attempts to warn his fellow patrons is not obviously a wrongdoer.


Mao Cheng Ji 02.19.13 at 8:51 pm

“The very notion that obstructing the draft can be a crime rests on the constitutionality of the draft in the first place”

I don’t think so. There is no such thing as “the constitutionality of the draft” in abstract. It could be, at some point, declared unconstitutional by the court, and then … well, it wouldn’t need any obstructing after that. But until that time, by obstructing it you’re bringing about substantive evils.


idonthaveacoolname 02.20.13 at 1:37 am

Schenck would probably see it differently and accuse the US government of shouting fire in order to incite behaviour that it should know will be injurious to the stampeding citizens. Like shouting “WMD!” to incite the media into a froth of waving flags and faux patriotism costing tens of thousands of lives in Iraq.

I do note the restriction that Holmes offers: when a nation is at war…. but if you just make it a perpetual War, on drugs or terrorism, for example, then you can just round up people at any time for saying anything that you dont like and, when asked, just say you heard them say “fire!”

You’re welcome.


Ozymandias 02.20.13 at 4:53 pm

“If there was a shout of fire, and if the shouter was indeed a member of the Citizens’ Alliance, he would hardly have been the universal enemy of Holmes’s metaphor; he would have been more like John Brown, a terrorist to some, a hero to others.”

In the context of the Calumet fire, the shouter certainly would be “the universal enemy” to anyone with any moral sense regardless of their sympathies concerning the strike and the union. As shown by the anti-union group’s attempt to provide donations to the survivors, falsely shouting fire can be universally condemned because it threatens all by introducing a category of threats into a conflict that may be used against any side, and that will also prove lethal to those who are not parties to the conflict, such as children seeking presents from Santa Claus.


Sandwichman 02.20.13 at 6:19 pm

Might we not construe “Santa Claus” as the real culprit here? People congregate in the theater expressly for the purpose of indulging in an illusion…


Sandwichman 02.20.13 at 6:42 pm

Of course in this case the ultimate “Santa” clause is the First Amendment.


Tim Wilkinson 02.20.13 at 7:59 pm

On the limits of free speech, there are a few different ideas that might be involved and aren’t necessarily distinguished very clearly in these discussions.

One important one that hasn’t really been mentioned is that where speech is banned under the rubric of ‘acts of incitement’ as in the case mentioned, it’s generally supposed – in central cases at least – that the thing that’s incited is some kind of criminal conduct. (This idea, if cogent, would be an example of the point I often make, that culpability does not c0me in fixed quantities – unlike (non-exemplary) damages in tort, where a novus actus interveniens principle makes sense in deciding who is to pay them.) In the case of the false alarm example (FAE), the ill-effect is not the commission of a crime.

Another, which may be implicated in the FAE, is that the speech is not really communicative, or at least doesn’t function to support deliberation and discussion, but instead provokes a reflex or other unconsidered response. (I suppose at the limit we could end up using an example such as causing an avalanche by talking loudly.) This may also be part of the idea of ‘fighting words’ that crops up in some 1st Amendment cases, and seems to me one of the more plausible reasons for limiting speech.

A third idea, or rather cluster of ideas, is immediacy/specificity/imminence/certainty. Of these aspects, only the first two seem suited to a general rule, at least where the restriction on speech is supposed to be based on incitement-by-advocacy. It seems odd at least that there might be two cases of persuasive speech which differ only in the imminence or certainty of their ill-effects and that on that basis only one of them should be suppressible/punishable. An anodyne statement might in the right circumstances act as a catalyst for simmering resentments to tip over into violence, while a virulent attempt at rabble-rousing might fall on deaf ears for reasons unknown to its author. This kind of test seems to introduce too much arbitrary and unclear factual content into the issue for it to figure in a well-formed, prospective and promulgable rule. One might also try more contrived, trolleological, counterexamples like ‘Mutiny, but not until next year’, or ‘not unless the dice-roll says so’. Immediacy (of effect or intended effect) and, especially, specificity (of content or intended effect) seem better suited to the task of justifying limitations on speech, since this starts to look like procurement as a kind of participation in a conspiracy (or perhaps the doubly-inchoate ‘attempt to conspire’). A call to commit an offence, supplying sufficient particulars, might be compared to a unilateral contract: whoever answers the call completes the conspiracy.

Finally, the issue of untruth (or mendacity) – I’d disagree with Salem on this point: falsehood doesn’t seem essential. If, for example, I go round the pubs on the estate (‘project’?) of a Saturday night and start handing out leaflets giving the name, address of a convicted child-molester and provide graphic particulars (just to lay it on thick, perhaps I also mention the location of an unsecured building site in which bricks can be found) then I might well be adjudged culpable, even criminally culpable, for having incited the resulting carnage. (Where imperatives/hortatory optatives/etc. are concerned, untruth or mendacity don’t seem even to arise as issues, though this is perhaps beside the point here.) Others have speculated above that the FAE might still work (though the TLA wouldn’t) even if there really were a fire, though I’m not so sure about that – certainly in these days when the much-maligned Health and Safety holds such sway, all the fault for a lethal crush would tend to fall on the proprietor of the hall, for providing inadequate vomitoria, or on any person who had blocked fire escapes etc.: it is generally assumed that raising the fire alarm will not cause a deadly stampede.


Keith 02.21.13 at 2:32 am

Holmes’s opinion is obviously wrong as it fails as has been pointed out to address the concept of free speech. Freedom of speech and opinion is the freedom to advance controversial views however unpopular. Including views which happen to be wrong. It is perfectly possible to hold that the constitutional validity of conscription is a controversy protected by the First Amendment. And what about the right to petition for redress in the same clause? Never mind the issue of Criminal burden of proof and defences based on it. It is shocking how reactionary judges can bat away civil Liberties with slipshod analogies when it suits them. Constitutional rights should not depend on whether or not a Judge likes your beliefs or way of life. It defeats the whole point of having a written constitution. Which is to have a Government of Laws not of men as they say. We get the same in England and other places when criminal convictions or censorship is obviously based on the fact that those in authority do not like the people being punished for having a different life style or opinions from the majority or those in power; and some legalistic excuse is made up to allow vindictive persecution.


Mao Cheng Ji 02.21.13 at 9:02 am

“Constitutional rights should not depend on whether or not a Judge likes your beliefs or way of life. It defeats the whole point of having a written constitution.”

That’s completely backwards. Constitutional rights depend exactly on what a Judge likes or doesn’t like, and nothing else. What “free speech” means is that the police can’t stop you from distributing your leaflets, unless a judge says they can.

And if you don’t like that, your only legal recourse is to find another judge, of a higher level, that overrules that judge. This Holmes guy was a Supreme Court Justice, which means, for all intents and purposes, God. Or rather a god, one of the 9.


C.L. Ball 02.21.13 at 8:32 pm

I think Hurda 20 and Salem 29 make good points. I agree that the unity v. contestation discussion reads too much into the metaphor, but not into the broader decision. Corey is less persuasive at 32 on the issue of falsity about the draft’s constitutionality being crucial to the his decision. It is not Schenks’ metaphor (the draft is slavery) but his constitutional claim (the draft is unconstitutional and draftees have right to uphold or a duty to assert against it) that is critical. It would be interesting how Holmes would have proceeded if the constitutionality of the draft were in question.

What is interesting about the case, especially as it concerns on going war-time law, is Holmes’ dependence upon the tacit intentions of Schenk, et al. :

Of course, the document would not have been sent unless it had been intended to have some effect, and we do not see what effect it could be expected to have upon persons subject to the draft except to influence them to obstruct the carrying of it out…. If the act (speaking, or circulating a paper), its tendency, and the intent with which it is done are the same, we perceive no ground for saying that success alone warrants making the act a crime.

To Holmes, Schenk et al want or a reasonable person may conclude that they want, to interfere with conscription, based on what they have written, how they disseminated it and how it could be interpreted, in time of war, which is barred by the Espionage Act (“Whoever, when the United States is at war, … shall wilfully obstruct the recruiting”). If it had been peacetime, the Espionage Act would not apply, and no conspiracy or crime would have occurred (“When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured…”). Holmes is stating that in circumstances of wartime, “verbal acts” (a la Gompers v. Bucks Stove & Range Co. , which he cites) like mailing pamphlets to draftees calling the draft unconstitutional and exhorting them to “assert their rights” is a criminal conspiracy.

Corey is correct, however, that an element of unity in the face of danger underlies Holmes’ decision Nonetheless, it is only an element. Rather, the Court is asserting inherent rights of the government: Congress has a power to declare war, draft citizens, and prohibit interference with recruitment during the war, including attempts to interfere with it. What Holmes is willing to ban is not political speech per se but political speech uttered with the intent to persuade others to engage in acts that the government can rightly prohibit when such acts could cause harms. This is why Salem’s truth v. falsehood distinction is so important.


C.L. Ball 02.21.13 at 9:09 pm

Keith 40 is correct, but this elides the issue as Holmes sees it. Holmes is not challenging Schenk for questioning the constitutionality of the draft or urging petition. Rather, what is at issue is whether Schenk exhorting draftees to uphold their right not to be drafted by a capitalist elite is equivalent to a conspiracy to interfere with recruiting in wartime. I think the answer is ‘no.’


Andrew F. 02.22.13 at 4:14 pm

Let’s remember the context of Holmes’s decision and his use of the metaphor: he’s talking about a man who is urging possible draftees to vote Socialists into Congress who will repeal the draft on the grounds that it is unconstitutional. So what, for Holmes, is the “fire” in this case? It’s Schenck. And who is threatened by the fire? The nation. That’s the point of the analogy.

No, the theater example isn’t a metaphor – it’s an example used to illustrate the general principle which Holmes then applies to the question before him. Moreover it’s meant as a particularly clear and stark example of the general principle.

The only point of the example is to show how a harm (persons being trampled as a result of panic) can clearly, foreseeably, and immediately result from speech (shouting fire). The First Amendment, Holmes asserts, does not protect such speech, in accordance with a general principle that Holmes announces, the clear and present danger test.

The harms that Congress may constitutionally act to prevent have nothing to do with whether a harm is “alien” or whether the nation as a whole is fully agreed upon what the harm is. Indeed, far from holding to an illusion that there is a unity of nation on views of what is harmful and what is not, or that there needs to be one, Holmes strongly argues elsewhere that there is no such unity, that it is a mistake to suppose there is, and that the Constitution is designed to allow for these diverse views. Holmes writes in his dissent in Lochner, for example, “I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”

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