Shouting “GUN!” In A Crowded Theater
First vs. Second Amendment Freedoms
Here in the United States, we zealously guard our first and second amendment freedoms: freedoms of speech, assembly, religion, the press, and the right to bear arms. That said, in theory at least, these freedoms are subject to reasonable limits.
Falsely shouting “Fire!” in a theater is the prototypical example of a valid restriction on Americans’ right to free speech under the first amendment. Justice Oliver Wendel Holmes’s famous opinion in Schenck v. United States established the standard. False speech that could cause panic is not protected by the Constitution. Holmes goes on to say:
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.
A key word in his opinion, often omitted in the retelling, is “falsely.” If there really is a fire — also a true threat to safety, and a clear and present danger — shouting “Fire!” can save lives, and remains protected speech. Theater patrons can be thankful of the opportunity to evacuate, and any injuries are correctly attributed to the fire rather than the shout.
Clear and Present Danger
As recent events demonstrate, a gun in a crowded theater can certainly be a terrible danger. Some will say that the gun itself isn’t necessarily a danger: “guns don’t kill people, people kill people.” My response is that I am not a mind reader, nor can I see the future. A gun in the hands of someone I don’t know looks to me like a clear and present danger. I have no idea what their intentions are, and bullets might fly any second.
Fortunately for me, I have never been in a theater and seen a gun, nor heard a shout of “GUN!” ring out over the crowd. I can imagine the scene, though — people scrambling toward the exits, panic spreading. It isn’t hard to imagine people injured or even killed by a stampede, whether or not shots are ever fired.
I know that if I hear that shout, I will immediately evacuate — and if I see a gun, I hope I have the courage of the women in Lafayette to pull the fire alarm or shout that warning. I hope I am quick enough to take action before any shots are fired. That gun is a clear and present danger, to me and to others, and I have every right to stand up and shout “GUN!”
If my shout causes a panic (which it could) and someone is injured (which is possible, perhaps even likely), then who is at fault? Suppose that no shots were fired, but someone was trampled. Should we blame the person who shouted? Or the person who brought a gun into the theater?
The answer is clear: if there really was a gun, the shout was true, and that speech is protected. It was the person carrying the weapon who was “shouting falsely” with implied threat, and creating a clear and present danger.
When Will We Apply The Standard?
Behavior that creates a clear and present danger to others is not protected under the Bill of Rights. When will Congress have the courage to apply that standard to behavior that some people — incorrectly — believe to be protected by the Second Amendment?