How Shouting ‘Fire!’ in a Crowded Theater Helps us Understand Incitement of Insurrection
Free speech is not without limits. One example we have all heard is that a person cannot falsely shout “fire!” in a crowded theater. The principle is so widely accepted that it has arguably earned the status of “common sense.”
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Schenck v. United States, 249 U.S. 47 (1919)
Let’s step back and see why we easily agree the shouting “sire!” scenario is so extreme. First, is the context. We’ve been there. Hundreds of people are packed closely together. It’s dark. There are probably two exits for those hundreds of people. That’s the setting.
The features of the speech are important. It takes the right word spoken in the right way. Shouting the words “spoon!” or “peanuts!” or “shark!” won’t produce a dangerous reaction in this particular setting, nor will merely saying or whispering the word “fire.” It takes a certain volume and tone.
We understand the likely effect of shouting that it in that context.
The right word spoken with clear urgency sends the alarm of mortal danger. The survival instinct kicks in and reason is kicked out. A lot of people won’t pause to think and evaluate the surroundings, they will just go. There is no time to fact-check the speaker; get out NOW. Other people that may briefly hesitate will take their cue from the people rushing to the exit and do the same. The few people that realize the truth will have little luck persuading the stampede to halt.
Shouting “fire!” in a crowded theater probably doesn’t justify prosecution if there is an actual fire. The “shouting ‘fire!” scenario requires a lie to make the dangerous speech unacceptable. It doesn’t matter that the shouter says he didn’t intend for anyone to get hurt. He intentionally shouted and should have known what was likely to happen. People in the theater harmed others because they believed the speaker was telling the truth. Shouting “fire!” is a dangerous lie. It is a Big Lie.
Just as a lie can create a stampede in a crowded theater, a lie can incite an insurrection — an attempt to overthrow the government by force — if the context is right. On January 6, 2021, it was.
Just as the person shouting “fire!” should be held responsible for the injuries in the theater, so should some people whose words sparked the crimes of January 6th.
Let’s unpack the incitement of insurrection.
What’s the context — the dark, crowded theater — of 1/6? The people in the theater are primed with knowledge of a threat: they will die if trapped in a burning theater. The 1/6 crowd was taught to believe their danger: that if the Democrats won the election, they would somehow destroy America and ruin their lives. How they came to believe this is a subject for other articles and books, but that is the mortal fear that motivated an insurrection.
The next part of the context is the election. The 1/6 crowd was told by their trusted sources and beloved leader that the election was rigged and stolen. If you believe it, of course you would be very angry, too. Despite lack of evidence to support various legal challenges (even before Trump-appointed judges), the claim of stolen election was repeated daily. This is the Big Lie. The fear and anger was stoked constantly. Funds were raised and the gathering was planned.
“The BIG Protest Rally in Washington, D.C. will take place at 11:00 A.M. on January 6th. Locational details to follow. StopTheSteal!”
“Did Trump specifically order them to storm the Capitol?,” is the wrong question. He didn’t have to be that explicit. The man in the theater shouts, “Fire!”; he doesn’t directly command, “Trample Each Other!”
Take a look at the transcript of his remarks, if you dare (The word “peacefully” is there once, while “fight” is there 18 times.) He winds them up and lets them go.
The speech is not the entirety of the incitement, but its climax. He lets them know they are the heroes of this story, of this historic moment. He reminds them that they feel Democrats will destroy America and ruin their lives. The fear is triggered. He repeats the big lie over and over that the election was rigged and stolen. The anger is triggered. He tells them the moment is now and it’s right there, steps away.
And Mike Pence is going to have to come through for us. And if he doesn’t, that will be a sad day for our country because you’re sworn to uphold our constitution.
Now it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down and I’ll be there with you. We’re going to walk down —We’re going to walk down. Anyone you want, but I think right here, we’re going to walk down to the Capitol — And we’re going to cheer on our brave senators and congressmen and women and we’re probably not going to be cheering so much for some of them.
Because you’ll never take back our country with weakness. You have to show strength and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. Lawfully slated.
I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Today, we will see whether Republicans stand strong for integrity of our elections. But whether or not they stand strong for our country, our country. Our country has been under siege for a long time. Far longer than this four year period.
A man that doesn’t want the assault to happen doesn’t promote the event, he doesn’t take the stage, and he definitely demands his followers leave the minute the barriers are broken instead of three hours later.
A man who shouts “fire!” in a crowded theater is inciting a dangerous stampede of terrified people. A president repeating the big lie for months, mobilizing his followers to march the hour Congress counts the certified electoral votes, and delivering a speech that repeats the big lie, frames the followers as heroes and calls them to immediate action against the Congress is inciting insurrection against the government, an attempt to overthrow the results of a legitimate election.
The man in the theater is convicted for shouting, “Fire!,” he didn’t need to shout “Trample Each Other!” to face accountability for the harm he caused.
