Garrett Epps

Albany Law Review, Summer, 2008

So because the fire chief says cuts in the fire department may lead to deaths, he is yelling fire in a crowded theater.

And then, finally, I found one--and this is the particular trope that comes out most often--that I think has serious implications for the world we live in right now, the moment we live in right now. These low-level sort of comic opera uses of it are always going to be with us, but here is one that I'm sure we've all heard in one form or another. It was a scholar of Islam, who shall remain nameless because it's not my point to kind of generate outrage at anybody, but who is discussing the cartoons of Mohammed that were run in some European newspapers and discussion of Islam that takes place in American media. And he says individual freedom can be checked by the idea that one cannot yell fire in a crowded theater. Freedom is limited by the situation you are in. Since the cry endangers the life and property of others, you don't have that right. You're going to get arrested for it if you don't get trampled yourself. If you were in the forest, you could yell till your jaw drops. There's some interesting implications of this I'd like to tease out. The first one, obviously, is the suggestion that freedom of speech is really fine as long as it's in places and times where either no one will hear it or it won't make any difference. And we're dealing with this in a very serious way in this country now by the new tactic that's been developed by local and federal governments of spatially segregating protest, so that, when the president comes to your town, you certainly may protest against him as long as you're willing to go to the cage in the fairgrounds about a mile-and-a-half from where he's going to speak and remain locked up, like a prisoner, until he has left. That way, you have free speech. No one hears you. The president doesn't see you. It doesn't make any difference. So that is an idea that is gaining ground.

But there's also the idea that fire in a crowded theater means discussing difficult or explosive social problems. That is to say, the argument is quite sincerely made by people across the political spectrum that we must mute our discussion of religious differences between Christianity, Judaism and Islam, and other religions because it is a time of great sensitivity, particularly for Muslim Americans, or Muslim--or English Muslims or French Muslims, as this is going on in Europe too. And I have no desire to stand up here and sort of appear to be singling out Muslims and saying, you know, suck it up. You guys need to have a better sense of humor. That's not what this is about.

What it's about is the question of whether we ever get any of the benefits of free speech if we adopt an exception to it that says, "When things are really tense you can't have it." And when I say "when things are really tense," I mean, literally, when certain kinds of free speech are leading to potentially blood on the sidewalk, as has happened in some of the places where those cartoons were printed. Is it really a legitimate exception to free speech? Is that "fire in a crowded theater" to say social tensions are so great, society is so divided, violence may occur if certain expression is allowed, therefore this is a permissible exception to the principle of free speech?