Tag Archives: Oliver Wendell Holmes

Falsely Shouting Fire in a Theater: How a Forgotten Labor Struggle Became a National Obsession and Emblem of Our Constitutional Faith

17 Feb

Did you ever wonder where the metaphor of falsely shouting fire in a theater comes from? Several years ago, I was co-writing a book about American political repression with Ellen Schrecker, the brilliant historian of McCarthyism. We came across a fantastic article by University of Texas legal scholar Lucas Powe that made a strong case for where Oliver Wendell Holmes, who came up with the metaphor, might have gotten the idea for it. Ellen followed up Powe’s hypothesis with some extensive sleuthing in the Michigan archives, and what follows is the result of her research and our writing.

Sadly, Ellen and I never finished that book. We did, however, write drafts of a few chapters, some prologues and preludes, and an introduction. What you’re about to read was meant to be a prologue to part 1 of the book, in which we were going to analyze the connection between political repression and national and domestic security (Part 2 was supposed to look at the role of violent and non-violent sanctions in repression; Part 3 would have examined the full array of legal, illegal, and extra-legal modes of repression). Security and repression is a subject I’ve written about at great length elsewhere, and some of the discussion below presumes the theory I have developed in those writings.

In any event, the possible true story of the false shout of fire in a theater is a great story on its own, and Ellen and I both wanted to make sure that it saw the light of the day. So with Ellen’s permission I’m posting our piece here.

For the sake of readability, I have eliminated all of our footnotes. But for those who want to follow up the sources, I’ve added a bibliography here that lists all the sources we cite and consulted in writing this piece, and I’ve posted a pdf of the original text, which contains all the footnotes.

• • • • •

All public facts are to be individualized, all private facts are to be generalized.

– Ralph Waldo Emerson, “History

Charles T. Schenck is remembered today less for what he did than for the image he helped inspire:  that of a man falsely shouting fire in a theater and causing a panic.  That image was first offered by Supreme Court Justice Oliver Wendell Holmes as an illustration of what Schenck did during the First World War, and it has since become a fixture of our discussions about the delicate balance between freedom and security, liberty and order, particularly though not exclusively in times of war.

It’s a pity that we remember the metaphor rather than the man, however, for the gap between what Schenck did and what Holmes said he did is considerable—and instructive.

Schenck was the general secretary of the Socialist Party in Philadelphia during the First World War.  Unlike their sister parties in Western Europe, America’s Socialists firmly opposed the war, even after the United States entered it in April 1917.  That summer, Schenck and his Philadelphia comrades launched a campaign against the draft.  They composed a two-sided leaflet that attacked the draft as unconstitutional and called for people to join the Socialist Party and persuade their representatives in Congress to repeal it.  If the leaflet’s language was strong—“a conscript is little better than a convict…deprived of his liberty and of his right to think and act as a free man”—it was also conventional, couched in a vernacular many would have found familiar.  One side proclaimed “Long Live the Constitution of the United States.” The other urged people to “Assert Your Rights!”

Schenck and his comrades made 15,000 leaflets and mailed most of them to men in Philadelphia who had passed their draft board physicals.  It’s unclear how many actually received the leaflet—hundreds were intercepted by the government—and no one produced evidence of anyone falling under its influence.  Even so, Schenck and four others were arrested and charged with “causing and attempting to cause insubordination…in the military and naval forces of the United States, and to obstruct the recruiting and enlistment services of the United States.”  Two of the defendants—Schenck and another party leader—were found guilty.  Schenck’s case was argued before the Supreme Court in January 1919, and the Court’s unanimous decision to uphold the conviction, written by Holmes, was delivered in March.

Holmes’s opinion was a mere six paragraphs.  But in one sentence he managed to formulate a test for freedom of speech that would endure on the Court in some form until 1968—“[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”—and in another to draw an illustration of the test that remains burned in the public consciousness to this day: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

With his disdain for socialists and rabble-rousers, Holmes would not have been pleased to see his name posthumously linked to Schenck’s.  But with his equally powerful sense of realism, he undoubtedly would have conceded the truth of Harry Kalven’s observation, in 1988, that “Schenck—and perhaps even Holmes himself—are best remembered for the example of the man ‘falsely shouting fire’ in a crowded theater.”  It was that kind of metaphor: vivid, pungent, and profoundly misleading.

Drawing on nearly forty years of his own scholarship and jurisprudence, Holmes viewed Schenck’s leaflet not as an instance of political speech but as a criminal attempt to inflict harm. In the same way that a person’s shout of fire in a theater would cause a stampede and threaten the audience with death so would Schenck’s leaflet cause insubordination in the military, hamper the war effort, and threaten the United States and its people with destruction.

Holmes knew that words were not always words:  sometimes they ignited fires—and not just the metaphorical kind.  In 1901, as chief justice of the Massachusetts Supreme Court, Holmes had upheld the conviction of a man who tried to persuade his servant to set fire to his own home in order to collect on the insurance. Just as that man’s words threatened the safety and well being of his neighbors so did Schenck’s threaten the safety and well being of his, or so Holmes believed.

Whenever the government suppresses opinions or beliefs like Schenck’s, it claims to be acting on behalf of values—national security, law and order, public safety—that are neutral and universal:  neutral because they don’t favor one person or group over another, universal because they are shared by everyone and defined by everyone in the same way.  Whatever a person may believe, whatever her party or profession, race or religion, may be, she will need to be safe and secure in order to live the life she wishes to live.  If she is to be safe and secure, society must be safe and secure:  free of crime and violent threats at home or abroad.  The government must be safe and secure as well, if for no other reason than to provide her and society with the safety and security they need. She and society are like that audience in Holmes’s theater:  whether some are black and others white, some rich and others poor, everyone needs to be and to feel safe and secure in order to enjoy the show.  And anyone who jeopardizes that security, or the ability of the government to provide it, is like the man who falsely shouts fire in the theater. He is a criminal, the enemy of everyone.  Not because he has a controversial view or takes unorthodox actions, but because he makes society—and each person’s pursuits in society—impossible.

But Americans always have been divided—and always have argued—about war and peace, what is or is not in the national interest.  What is security, people have asked?  How do we provide it?  Pay for it?  Who gets how much of it?  The personal differences that are irrelevant in Holmes’s theater—race, class, gender, ethnicity, residence, and so on—have had a great influence in the theater of war and peace. During the First World War, Wall Street thought security lay with supporting the British, German-Americans with supporting the Kaiser, Socialists with supporting the international working class.  And while the presence or absence of fire in Holmes’s theater is a question of objective and settled fact, in politics it is a question of judgment and interpretation.  During the war, Americans could never decide whether or not there was a fire, and if there was, where it was—on the Somme, the Atlantic, in the factories, the family, the draft—and who had set it:  the Kaiser, Wilson, J.P. Morgan, Teddy Roosevelt, the Socialists, the unions, the anarchists.  Without agreement on these questions, it wasn’t clear if Schenck was the shouter, the fire, or the fireman.

There are fires in politics, but where and what they are, who set them, how they can be put out, and who will put them out—these are political questions, the subjects of controversy and debate.  How we answer these questions—and whether they become questions at all (for not all threats and dangers become items of public discussion)—will reflect in part who has power and who does not, whose ideas are influential and whose marginal, whose interests are salient and whose negligible.

In politics, we’re never in Holmes’s theater, enjoying the show until someone comes along and ruins the evening.

Or maybe we are.

On Christmas Eve in 1913, the Ladies Auxiliary of the Western Federation of Miners local in Calumet, Michigan, held a party for the children of copper miners who had been on strike against their employer, the Calumet and Hecla Mining Company, since July. About 500 children and 175 adults packed the second-floor auditorium of the Italian Hall in Red Jacket, a small mining town on the Keweenaw Peninsula, which juts out onto Lake Superior.  The miners were mostly immigrants from the peripheries of Europe—Finland, Italy, and the Balkans—but their children were one in their quest for the nuts, candy, and presents from Santa that the Ladies Auxiliary had provided.

As the children lined up in the front of the large room, someone shouted “Fire.”  Nobody smelled smoke or saw flames, but the panicked children and adults rushed to the main exit at the back of the hall.  They raced down the stairway, a few stumbled on the steep steps, others piled on top of them, and still others, unable to stop the onrush behind them, piled on top of the pile.

The stampede was over in minutes.  The tangle of bodies in the stairway was so dense that rescuers out on the street could not pull any victims out from the bottom.  They had to go through the hall and lift them from the top.  Seventy-four people died, most of them children, some still clutching their Christmas presents.

To this day, no one knows who, if anyone, shouted fire.  One possible explanation is that a child had fainted and that someone cried for water.  Water—or its Finnish equivalent vettä—sounds like watra, which means fire in Serbo-Croatian.  Many witnesses, however, claim that they saw a man with a Citizens’ Alliance—a local anti-union group of businessmen—button on his lapel enter the hall, shout “fire,” and run down the stairs. To their dying day, survivors claimed that the stampede was the work of a company man.

That was the version of the story that Woodie Guthrie immortalized in his 1939 ballad “The 1913 Massacre”:

The copper-boss thugs stuck their heads in the door

One of them yelled and he screamed, ‘There’s a fire!’

A lady, she hollered, ‘There’s no such a thing!

Keep on with your party, there’s no such a thing.’

A few people rushed, and it was only a few

‘It’s only the thugs and the scabs fooling you.’

A man grabbed his daughter and carried her down

But the thugs held the door and he could not get out.

And then others followed, a hundred ore more

But most everybody remained on the floor.

The gun-thugs they laughed at their murderous joke,

While the children were smothered on the stair by the door.

 

And it might well have been the version Holmes would have read about.  The Calumet fire was widely reported throughout the country—Congress held hearings about it and the copper strike in 1914—and Holmes was an avid reader of newspapers.  He also loved the theater and had a passion for fires.  He told a friend “that whenever there was a fire in any direction he would be glad to go to it with me even if he had to be routed of bed.”  His friend added that “it would not have surprised me had he left the Bench to witness a fire while the Court was in session.”

We’ll never know for sure if Holmes knew about the Calumet tragedy and whether it inspired his metaphor, though University of Texas legal scholar Lucas Powe has made a strong case for that claim.

Yet even in Calumet, in a crowded hall on Christmas Eve with children unwrapping their presents in peacetime, the metaphor fails.  The strikers in the Italian Hall and their families were united, but what brought them together was a bitter standoff with Calumet and Hecla about wages, safety in the mines, the introduction of new machinery, the pace of work, and, most of all, whether the workers would have a union or not.

For decades, Alexander Agassiz, the Boston Brahmin who ran the company, had refused to negotiate with the miners, declaring in 1874, “We cannot be dictated to by anyone….Wages will be raised whenever we see fit and at no other time.”  Forty years later, Calumet and Hecla was still refusing to negotiate:  as the chair of a congressional committee said, “There is little we can do to end the strike.  The operators will not employ a single union man.  The remaining strikers can go back to work if they surrender their union cards, otherwise they will be compelled to some other part of the country to earn a livelihood.”

Set aside the controversy about whether or not there was a shout of fire and who the shouter was (though the fact that there was a controversy indicates how difficult it is to apply Holmes’s metaphor—in which there is not supposed to be any controversy—to politics).  If there was a shout of fire, and if the shouter was indeed a member of the Citizens’ Alliance, he would hardly have been the universal enemy of Holmes’s metaphor; he would have been more like John Brown, a terrorist to some, a hero to others.

Rather than unite a divided Keweenaw Peninsula, the tragedy at the Italian Hall divided it even further.  After the stampede, the wives of the Citizens’ Alliance went house to house to dispense to the survivors the $25,000 the anti-union group had raised; doors were slammed in their faces.  “The Western Federation of Miners will bury its own dead,” declared union president Charles Moyer, who had been in the region since September to monitor the strike’s progress.  “The American labor movement will take care of the relatives of the deceased.  No aid will be accepted from any of these citizens who a short time ago denounced these people as undesirable citizens.”

On December 26, a group of fifteen men burst into Moyer’s hotel room.  The men “piled on me like a pack of wolves,” he later testified, “kicking and striking and cursing.”  A revolver accidentally went off, hitting Moyer in the back and shoulder.  The men grabbed Moyer and another union official, dragged them through town to the railroad station, put them on board a train for Chicago, and warned Moyer “if you ever come back to this district again we will hang you.”

The following day, local authorities arrested the editor and several employees of the local radical Finnish newspaper Tyomies, which first publicized the accusation that the Citizens’ Alliance had caused the stampede, and charged them with “conspiracy to publish mis-statements calculated to incite riot.”  Two weeks later, on January 15, 1914, the Houghton County Grand Jury indicted Moyer and 37 other unionists for participating in a conspiracy that “instituted a general strike…with the purpose and intent of causing and compelling the employees of the companies…to cease work and to shut down and prevent the operation of the mines.”  Nine days after that, the same grand jury refused to indict Moyer’s attackers.

Holmes’s metaphor was supposed to illustrate the unity of society in the face of an alien danger and the right of the government, grounded in neutral and universal principles, to suppress that danger. But Calumet, like Schenck, reveals the opposite:  a society divided—not just in the face of danger but over the face of danger—and a government selectively deciding whom to protect and from what to protect them.

While Holmes’s metaphor obfuscates the realities of Calumet and Schenck, it also reveals a deeper nexus between them.  Why, after all, might Holmes have remembered and reached back to an incident from the nation’s bitter labor history to describe an equally bitter conflict over war and peace?

Perhaps it is because there is an intimate connection between public safety and private authority.  A safe and secure nation, many believe, is publicly united—and privately obedient.  Workers submit to employers, wives to husbands, slaves to masters, the powerless to the powerful.  A safe and secure nation is built on these ladders of obedience, in its families, factories, and fields.  Shake those ladders and you threaten the nation.  Stop people from shaking them and you protect it.

In Billy Budd, Herman Melville tells the story of the Bellipotent, a British naval ship on her way to the Mediterranean to fight the French.  The year is 1797, and the French enemy is in possession of—or possessed by—a revolutionary ideology of freedom and equality.  The British navy is writhing with discontent, most notably over the impressments of its sailors.  Thanks to the “live cinders blown across the Channel” from revolutionary France, writes Melville, that discontent has “been ignited into irrational combustion.”  Mutiny, and the threat of mutiny, is everywhere.  One in particular, the Nore Mutiny of May 1797, is “a demonstration more menacing to England than the contemporary manifestoes and conquering and proselyting armies of the French Directory.”

Disorder at home and danger abroad, domestic obedience and international security, safety and submission, insecurity and revolt—all are seamlessly intertwined in this tale about the British navy during the French Revolution that is also a tale about the American struggle over slavery and perhaps about the labor movement as well. (Melville began Billy Budd in 1886, nine years after the Great Upheaval.  1886 saw a massive strike wave—1400 strikes—that culminated in the Haymarket tragedy.  Melville was still working on Billy Budd in 1891, when he died, just one year shy of the showdown at Homestead.)

Like the plantation and the factory, the navy, in Melville’s telling, is a labor-intensive operation:  the “innumerable sails and thousands of cannon” of the ship “worked by muscle alone.”  Like the Nore Mutiny, slave rebellions throughout the Americas were sparked by the French Revolution, an influence Melville took up more directly in Benito Cereno.  And like the rhetoricians of both slavery and abolition, Melville resorted to the language of fire to describe the all-encompassing threat of a conflict over power and authority: the Nore Mutiny was to the British Empire, he wrote, “what a strike in the fire brigade would be to London threatened by general arson.”

“Men feared witches and burned women,” wrote Justice Brandeis in Whitney v. California.  That’s true, but men also feared women and burned witches.  It is that traffic—between the uppity and the unsafe, the insurgent and the insecure, the immoral and the dangerous—and the alchemy by which a challenge to a particular social order becomes a general threat to the whole, that is the real story of how a fire in a theater, which may or may not have happened in the way various men and women think it happened, became a national obsession and an emblem of our constitutional faith.

Bibliography

William Beck, “Law and Order During the 1913 Copper Strike.” Michigan History LIV (Winter 1970).

Jeremy Brecher, Strike! Cambridge: South End Press, 1997.

Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”:  Struggles for Freedom of Expression in American History. Durham:  Duke University Press, 2000.

The Finnish Experience in the Western Great Lakes Region:  New Perspectives, ed. Michael G. Karni, Matti E. Kaups, and Douglas J. Ollila, Jr. Turku, Finland:  Institute for Migration, 1975.

William B. Gates, Jr., Michigan Cooper and Boston Dollars:  An Economic History of the Michigan Cooper Industry. Cambridge:  Harvard University Press, 1951.

House of Representatives Subcommittee of the Committee on Mines and Mining, Hearings on “Conditions in the Copper Mines of Michigan,” 63rd Congress, 2nd session (Washington: Government Printing Office, 1914).

Michael H. Hunt, Ideology and U.S. Foreign Policy. New Haven:  Yale University, 1987.

Vernon H. Jensen, Heritage of Conflict:  Labor Relations in the Nonferrous Metals Industry Up to 1930. New York:  Greenwood, 1968.

Larry Lankton, Cradle to Grave:  Life, Work, and Death at the Lake Superior Copper Mines. New York:  Oxford University Press, 1991.

Herman Melville, Billy Budd, Sailor, in Melville’s Short Novels, ed. Dan McCall. New York:  Norton, 2002.

Stephen H. Norwood, Strike-breaking & Intimidation:  Mercenaries and Masculinity in Twentieth-Century America. Chapel Hill:  University of North Carolina Press, 2002.

H.C. Peterson and Gilbert C. Fite, Opponents of War, 1917-1918. Seattle:  University of Washington Press, 1957.

Richard Polenberg, Fighting Faiths:  The Abrams Case, the Supreme Court, and Free Speech. New York:  Viking, 1987.

L.A. Powe, Jr., “Searching for the False Shout of ‘Fire.’” Constitutional Commentary 19 (Summer 2002).

David M. Rabban, Free Speech in Its Forgotten Years. New York:  Cambridge University Press, 1997.

Yosal Rogat and James O’Fallon, “Mr. Justice Holmes:  A Dissenting Opinion—The Speech Cases.” Stanford Law Review 36 (July 1984).

Schenck v. United States, 249 U.S. 47 (1919)

Arthur W. Thurner, Rebels on the Range:  The Michigan Copper Miners’ Strike of 1913-1914. Lake Linden, Michigan:  John H. Forster Press, 1984.

Peter Trubowitz, Defining the National Interest:  Conflict and Change in American Foreign Policy. Chicago:  University of Chicago Press, 1998.

Whitney v. California, 274 U.S. 357 (1927)

Follow

Get every new post delivered to your Inbox.

Join 5,215 other followers