Yes, Mark Zuckerberg, You Can Shout 'Fire' in a Crowded Theater

Mark Zuckerberg has joined a dubious list of prominent Americans—including judges, members of Congress, and even a vice presidential nominee—who believe that you can’t yell “fire” in a crowded theater. In an interview with Joe Rogan last week, the Meta CEO attempted to justify the company’s pandemic-era censorship policies by arguing that “even people who are like the most ardent First Amendment defenders” know that there is a limit to free speech. 

“At the beginning, [COVID-19 was] a legitimate public health crisis,” Zuckerberg told Rogan. “The Supreme Court has this clear precedent: It’s like, all right, you can’t yell ‘fire’ in a crowded theater. There are times when if there’s an emergency, your ability to speak can temporarily be curtailed in order to get an emergency under control. I was sympathetic to that at the beginning of COVID.”

The thing is, Zuckerberg is simply wrong when it comes to how the First Amendment works.

The common misconception that it’s illegal to shout “fire” in a crowded theater originates with a hypothetical used by Justice Oliver Wendell Holmes in the 1919 Supreme Court case Schenck v. United States.

In his opinion, Holmes wrote that “the character of every act depends upon the circumstances in which it is done,” adding that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Not only was this passage a pure hypothetical used to illustrate Holmes’ larger opinion that the First Amendment didn’t protect the dissemination of anti-draft pamphlets, but Schenck itself was overturned in 1969 by Brandenburg v. Ohio.

“To the contrary, if the theater is on fire, you not only may shout ‘FIRE,’ but indeed, you should do so! The constant misstatement of this famous line from a 1919 Supreme Court decision is significant, because it overlooks the critical, common-sense distinction between protected and unprotected speech,” former American Civil Liberties Union President Nadine Strossen said in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations. People have been using this cliché as if it had some legal meaning, while First Amendment lawyers roll their eyes”

Zuckerberg’s interview came in the wake of a January 7 announcement that Meta platforms would no longer use third-party fact-checkers to label and restrict content, as well as loosen restrictions on some subjects “that are part of mainstream discourse.” 

“After [Donald] Trump first got elected in 2016, the legacy media wrote nonstop about how misinformation was a threat to democracy,” Zuckerberg said in a video announcing the change. “We tried in good faith to address those concerns without becoming the arbiters of truth. But the fact-checkers have just been too politically biased and have destroyed more trust than they’ve created, especially in the U.S.”

While this change is a welcome shift from Meta’s previous content-moderation regime, that Zuckerberg is still getting this basic element of the First Amendment wrong hardly bodes well for Meta’s future as a platform friendly to free expression.

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