Justice Oliver Wendell Holmes: A Clear and Present Danger
by Joe Bommarito
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Exclusive to TLE

Mr. James J. Odle ("Random Observations", TLE 216) makes some observations regarding Oliver Wendell Holmes's well-known comment about shouting "fire" in a crowded theater. Mr. Odle writes:

"Whenever the subject of rights is discussed, sooner or later the Sainted US Supreme Court Judge Oliver Wendell Holmes' favorite saying, 'Nobody has the right to shout 'fire' in a crowded theatre!' is brought up and everybody's brain switch flips to the 'off' position."

As Mr. Odle states, this comment "is frequently used to shut off discussion on why individual rights aren't being taken seriously" and "is also used to justify anything that politicians want to do." How true. Mr. Odle's other observations are equally valid. But discussion on the "fire" statement goes deeper than that.

The "fire" comment was actually an example that Holmes used in a freedom of speech case where the appellant, Schenck, had been convicted under the Espionage Act of 1917. Schenck was distributing pamphlets urging resistance to the draft, sometimes mailing them directly to recent draftees.

In Schenck v. United States (1919), Holmes wrote, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." [emphasis added]

I wholeheartedly agree, but for entirely different reasons than Holmes implies in his equally well-known "clear and present danger" test.

Holmes supported his "fire" example by going on to announce an often misquoted-and often misused-test. He wrote, "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 test asks the questions:

• Is this speech so close to inciting action as to be regarded as action, and
• Is the action one that the State should prevent?

Schenck's conviction was upheld as the Court concluded that his speech was tantamount to action that the State had prohibited, i.e., inciting resistance to the government or promoting the cause of its enemies. World War I was in progress at the time and, as we know, the exigencies of war always seem to take precedence over freedom of speech, at least in the view of the State and its reason-challenged adherents.

While Holmes's test is actually less restrictive and more friendly to free speech than the "bad tendency" test it replaced, it remains a tainted mechanism. Where Holmes made his error was in crafting the phrase "substantive evils that Congress has a right to prevent." Congress has no rights. It has powers. As Mr. Odle points out, those powers are limited by individual rights.

So why would I agree with Holmes that falsely shouting fire in a theatre would not be protected speech? In a word: rights. The man who falsely shouts fire violates the property rights of others.

The other theatre patrons have exchanged money (property) for the rental of a seat (property) and the opportunity to have an entertaining experience (property[*]). Their property rights are infringed by the "fire" shouter as they leave the theatre, their entertainment interrupted and their lives endangered.

The rights of the theatre owner are also infringed. He has promised the use of his theatre (property) to the patrons in exchange for compensation (property). He has also promised the viewing of a play, a movie, or some type of entertaining event for which he has exchanged property (rental or some other type of payment) and is now transferring a partial right to the patrons. This is free-market economics at its finest. There is a mutually agreed-upon exchange of property and all parties benefit.

It is the right to property that is being violated and the "fire" shouter has no right to engage in that particular speech because his rights are limited by the equal rights of the theatre owner and the patrons. As Thomas Jefferson wrote, "Of liberty I would say that, in the whole plenitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others." [emphasis added]

Even Holmes was well aware of this principle when he also famously said, "Your right to swing your fist stops at the other fellow's nose."

Justice Holmes's "clear and present danger" test does nothing to protect the property rights of individuals but does much to advance the power of the State. Holmes's test puts the whole issue in the context of public safety and the police power of the State to protect it, not in individual rights and the concurrent obligation of the State to assist citizens in seeking restitution for violations of their property rights. That is the failure of Holmes in this instance. He devised a test that could have resulted in a landmark case for freedom and didn't. Imagine if he had written instead:

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 infringe the equal rights of others to enjoy their lives, their liberties, and their property. It is a question of proximity and degree.

Such a rights-oriented focus in this test might well have stiffened the spines of later justices faced with clear infringements of property by the State itself.

Badly written opinions make bad law; bad law makes oppressive government.

[*]"In its larger and juster meaning, [property] embraces everything to which a man may attach a value and have a right. ..." James Madison, 1792

Joe Bommarito is a free lance penslinger who currently writes columns for Connect Savannah, a print news weekly, and for Strike-the-Root.com.

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