History.com gives us the account of the Brooklyn Fire on December 5, 1876. (wikipedia account) It was an event that killed almost 300 people. Deaths that were later attributed to negligence of the owners, designers of the building, and management of the Brooklyn Theater. Here’s a brief recitation of the events and it effects thereafter.
The Two Orphans, was a popular play, causing almost all of the 900 theater seats to be filled that night. It was between the 4th and 5th Act, with the stage back curtain still down. A gas light ignited some extra scenery stored behind the stage, near some straw. The stage manager initially did not realize the significance of the flames. Because there were no buckets of water, and the water hose was not working, he directed the stage hands to extinguish the fire with long stage poles. That was not successful, and the flames began to spread.
In spite of the flames and smoke, the actors continued to stay in character. Many in the audience grew restless, but many thought that it was all part of the play.
Soon, the actors fell out of character. The Brooklyn Daily Eagle later reported that the primary actor said to the crowd, “There is no danger; the flames are a part of the play.”As she spoke,” the Eagle reported that “a burning piece of wood fell at her feet, and she uttered an involuntary exclamation of alarm. This broke the spell which had heretofore held the audience.”
Panic erupted and the stage manager J. W. Thorpe appeared, urging everyone to exit in an order manner. But, the audience was now thoroughly panicked and ignored the people on the stage. Because a narrow staircase was the only the exit from the balcony and that there were no fire escapes; the stampede resulted in many being crushed, while others were trapped. When firefighters arrived, it was too late. And 1/3 of the audience could not exit in time.All this had occurred in approximately 10 minutes.
Later, it was estimated that approximately 300 people died. A dangerous condition had been created with no safety precautions, in the event of a fire. Looking back, it was foreseeable and preventable. The attachments above give further detail in the design of the building and the negligence of management. Further details of the actors, including one who ran to his dressing room and tried to climb out of his window… only to get stuck in the window and ultimately die.
In 1919, Supreme Court Justice Oliver Wendell Holmes wrote in an opinion (Schenck case) about the first amendment application and free speech that no free speech safeguard would apply to someone “falsely shouting fire in a theater and causing panic“. Thereafter, people took that wording from that opinion to mean that shouting “Fire” in a crowded theater was against the law, with no protection of free speech.
In 1969, the Supreme Court heard the case of Brandenburg v. Ohio . It involved a Ku Klux Klan leader, Charles Brandenburg, who had been charged with inciting group members at a rally. He had used inflammatory language and racial slurs including calling “revengeance,”. Ohio prosecutors had interpreted his speech as a call to violence. Thus, using the same Schenck case regarding shouting “Fire“, prosecutors charged Brandenburg as breaking the law without the protection of free speech.
Brandenburg continued to claim that the First Amendment protected his speech. The Supreme Court agreed with him, in contrast with the earlier Schenck decision.
According to the opinion, advocacy, even when it encourages law-breaking, helps the marketplace of ideas. Based on this opinion, it was clarified that shouting Fire in a crowded theater was protected by free speech… even though it is not a sensible idea. There is one caveat to that, lest you think I am encouraging wild hollering at the theater!
If prosecutors can prove that someone incites “imminent lawlessness” by falsely shouting “Fire” in a crowded theater, then they can still be charged and convicted. Merely shouting “Fire” is protected. A change/clarification since 1969.
I know I got a little carried away with lots of words for this blog. But… this day in history grabbed me with lots of effects on the law. I will try to be shorter tomorrow… with lots of pic o’s to make up for it!! I promise!
Which leads me to the feeling that we need something of a smile for our pic o’ day. Isn’t life Grand!