Searching for the False Shout of "Fire"

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"Schenck--and perhaps even Holmes himself--are best remembered for the example of the man 'falsely shouting fire' in a crowded theater." (1) So wrote Harry Kalven even as he repeated one of the two popular misstatements (2) of what Holmes actually wrote: "falsely shouting fire in a theatre and causing a panic." (3) With Kalven, everyone who studies the First Amendment is confronted and confounded by the false shout of fire. Where did Holmes come up with this image?

Ernst Freund, writing in The New Republic after Holmes affirmed Eugene Debs' conviction, (4) found that the Court had applied "notoriously loose common law doctrines" to send Debs to jail for what Freund aptly noted was agitating against the war. (5) Indeed Freund could not conceive of how Debs could have hoped to interfere with the military, given all the practical obstacles in the way:

 
   Yet Justice Holmes would make us believe that the relation of 
   the speech to obstruction is like that of the shout of Fire! in a 
   crowded theatre to the resulting panic! Surely implied provocation 
   in connection with political offenses is an unsafe doctrine 
   if it has to be made plausible by a parallel so manifestly 
   inappropriate. (6) 

Kalven added his amen; the example was both "trivial and misleading." (7)

The reason Holmes came up with such a bad analogy to Schenck's actions (8) is that he did not see Schenck primarily as a First Amendment case. To the extent that Holmes did think about the First Amendment, it was solely to conclude that it did not give an absolute immunity to speech even if it did mean something more than no prior restraints. (9) The full sentence--"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic" (10)--is the rejection of complete protection for all speech.

Holmes and Schenck-Debs have prompted a lot of scholarship. For decades, Zechariah Chafee offered the conventional wisdom that Holmes was laying groundwork while waiting for the right case (11)--Abrams (12)--later in the year. Gerald Gunther destroyed Chafee's soothing apologetics when he detailed Learned Hand's lobbying of Holmes on the issue. (13) That proved Holmes was "quite insensitive" (14) to speech claims and that he had no grasp of speech issues. (15) More recently and very persuasively, David Rabban (16) has painstakingly laid out the relationship between Holmes' prior thinking on the common law of attempts--commencing in The Common Law (17)--and his opinions in Schenck, Debs, and Frohwerk. (18) As he demonstrates, Schenck was a rather routine criminal case for Holmes. Government can punish actual obstruction of the draft; so government can punish an attempted obstruction. The distinction between an attempt by conduct and an attempt by speech was, for Holmes, a distinction without a difference.

The law of attempts provide one answer to the origins of the example of falsely shouting fire and causing a panic. But there is a different, virtually unasked, "where" question. Where did Holmes get his hypothetical about the false shout? After all, it doesn't jump out as the first or best (or even second best) illustration of the legal proposition that the First Amendment does not offer …