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I've yet to hear this cliché invoked where the person thinks it's legal, but I see no reason why it wouldn't be.

If you yell fire and cause something to happen that endangers people then wouldn't the endangerment be the crime?

Conversely, if you yell it and people do nothing then what might be the charge?

If these instances are correct then it would seem clear that Freedom of Speech is being honored as it's the result of speech, not the speech itself, that could be an offense.

  • Even if the endangerment is the crime, the only act causing the endangerment is the shouting. Consider the question "If you pull a trigger and cause a bullet to fly through the air and kill someone then wouldn't the killing be the crime?" Yet still we might speak about whether this or that defense might be helpful to the shooter even though the charge is murder rather than "shooting." – phoog May 25 '18 at 5:32
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Law

The origin of the phrase is from the Supreme Court of the United States in the case Schenck v. United States, 249 U.S. 47 (1919). It specifically rules on the limitation of freedom of speech (first amendment):

The original ruling is this:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [...] 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.

As pointed out by @phoog, this does not saying anything about the lawfullness of shouting "fire", it says that if your speech creates a clear and present danger, the first amendment will not protect you, even if the danger does not result in actual harm.

Commentary

If these instances are correct then it would seem clear that Freedom of Speech is being honored as it's the result of speech, not the speech itself, that could be an offense.

You seem to think that it should be illegal, but only if it results in a panic that endangers people. If people ignore you, you think it should be protected by your first amendment rights.

That's not how the law works. The law tries, among other things. To establish norms for human behaviour. For example, you will be punished for driving an automobile while intoxicated, even of this does not result in you running over somebody.

In the words of the supreme court: If your actions "are of such a nature as to create a clear and present danger", the congress has the right to prevent you from doing so, despite the first amendment.

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  • The ruling says nothing about the lawfulness of shouting "fire" in the theater, only that someone facing charges for having done so would be unable to rely on a first amendment defense. – phoog May 25 '18 at 5:36
  • @phoog. Point taken. Amended answer. – Free Radical May 25 '18 at 5:52
  • I am saying the first amendment is not involved. No one is going to be charged for improper speaking and using the first amendment for defense is superfluous. I believe you can yell fire in a crowded theater without charge if nothing happens ( perhaps including that one paid to get in the theater. ) – Randy Zeitman May 25 '18 at 14:17
  • I've yelled "Fire" in a crowded theater. I was on stage and it was my line. Pretty sure that wasn't illegal. At the very least, you need intent to cause a panic (or cause some other bad thing to happen) for it to be illegal. – D M May 27 '18 at 22:28
  • It's also worth noting that Schenck (which upheld a conviction for someone distributing anti-draft pamphlets, not for someone shouting in a theater or causing a panic) is not good law anymore. – D M May 27 '18 at 22:50
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I'd say you're maybe being overly formalistic, but you've pretty well identified the distinction: Constitutional law treats the effect of the speech, not the speech itself, as the punishable offense.

So, no, a person shouting fire in a crowded theater would not be charged with misdemeanor shouting-fire-in-a-crowded-theater, he would probably be charged with -- depending on the jurisdiction -- disorderly conduct, criminal endangerment, inducing panic, etc.

But at the same time, setting the question up like this is sort of like saying, "Isn't it technically legal to stuff your mother through a meat grinder?" Technically, there isn't a law prohibiting the stuffing of mothers through meat grinders, but it's pretty safe to say that she's going to die and that you're going to get hit with murder charges.

Criminal law allows juries to infer intent from the likely outcome of a person's actions, so even if Mother somehow survived the grinder, you'd probably still be convicted for attempted murder. Same in the theater: Even if everyone calmly proceeded to the nearest exit, people would probably conclude that you had attempted to induce panic, and you'd be hit with the same penalty as if you had been successful.

As a side note, I just read yesterday that the Hays Code, the movie industry's self-imposed guidelines from the 1930s to 1950s, actually prohibited films from including anyone screaming "Fire!" I haven't been able to verify this myself, but I'll update if I do.

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  • 1
    hah, the meat grinder part was what earned you a +1 from me – Adam Plocher May 25 '18 at 13:42
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It is illegal in Ohio, under ORC 2917.31, where it is called "Inducing panic". The law starts:

(A) No person shall cause the evacuation of any public place, or otherwise cause serious public inconvenience or alarm, by doing any of the following:

(1) Initiating or circulating a report or warning of an alleged or impending fire, explosion, crime, or other catastrophe, knowing that such report or warning is false;

Notice that the prohibited act is "caus[ing] the evacuation of any public place, or otherwise caus[ing] serious public inconvenience or alarm". Disorderly conduct, ORC 2917.11, has a lower and more general threshold:

No person shall recklessly cause inconvenience, annoyance, or alarm to another

by doing various things by fighting, threatening, insulting, making loud noises, which also includes

(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.

Note that if the act presents a risk of harm, it is prohibited.

Washington's law, RCW 9A.84.040 (False Reporting), does not require evacuation or harm to actually result.

A person is guilty of false reporting if with knowledge that the information reported, conveyed, or circulated is false, he or she initiates or circulates a false report or warning of an alleged occurrence or impending occurrence of a fire, explosion, crime, catastrophe, or emergency knowing that such false report is likely to cause evacuation of a building, place of assembly, or transportation facility, or to cause public inconvenience or alarm.

There is another law that would cover fire-shouting, RCW 9.40.100, which says

Any person... who willfully and without having reasonable grounds for believing a fire exists, sends, gives, transmits, or sounds any false alarm of fire, by shouting in a public place or by means of any public or private fire alarm system or signal, or by telephone, is guilty of a misdemeanor.

In California, per Cal. Pen. 148.4(a)(2) a person is a violator if he

Willfully and maliciously sends, gives, transmits, or sounds any false alarm of fire, by means of any fire alarm system or signal or by any other means or methods.

It is likely that there is some such law in every state, though the specifics will vary.

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  • Seems a standard and necessary law, but if yelling fire in a crowded theater does not result in anyone’s endangerment then how can it be a legal? – Randy Zeitman May 28 '18 at 2:03

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