The MSNBC host Touré — who has made his share of controversial statements in the past — asked his guest moments ago whether Sony Pictures’ making The Interview amounted to “shouting ‘fire’ in a crowded theater.” He later asked if depicting the assassination of Kim Jong Un was “inappropriate.”
(It’s as if he wanted to illustrate David French’s point that “free speech may be a value people broadly support, but they also take it completely for granted, giving it zero thought in their daily lives. . . . A critical mass of Americans are not necessarily going to see the meaning and purpose of enduring even the slightest risk for a raunchy comedy.”)
Touré is not alone:
Sharon Waxman compared The Interview to yelling fire in a crowded theater. Said they weren't responsible to first amendment. #headdesk
— Rory Cooper (@rorycooper) December 18, 2014
In The Atlantic, Trevor Timm pointed out that the vast majority of those who invoke the “fire in crowded theater” point completely misunderstand its context and legal relevance:
Today, despite the “crowded theater” quote’s legal irrelevance, advocates of censorship have not stopped trotting it out as the final word on the lawful limits of the First Amendment. As Rottman wrote, for this reason, it’s “worse than useless in defining the boundaries of constitutional speech. When used metaphorically, it can be deployed against any unpopular speech.” Worse, its advocates are tacitly endorsing one of the broadest censorship decisions ever brought down by the Court. It is quite simply, as Ken White calls it, “the most famous and pervasive lazy cheat in American dialogue about free speech.”
The thinking of the censor-minded is that somehow, Sony should have known that depicting Kim Jong Un in a humiliating way would have generated a furious, dangerous, threatening response. This is a bit of First Amendment jujitsu, where somehow you’re responsible not just for what you say but for how someone else reacts to it. You’re expected to have clairvoyant abilities of how someone is going to react, and then not speak aloud the argument you wanted to make, because preventing their potentially violent, dangerous, or threatening reaction is more important than your right to speak.
Note that the quote is: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”
There cannot be any lawful limitation on truthfully shouting fire in a theater. While The Interview is fiction, the film’s portrayal of North Korea as a dangerous, paranoid, despotic state run by a young lunatic is pretty darn accurate.