‘Shouting Fire in a Theater’: The Life and Times of Constitutional Law’s Most Enduring Analogy

Carlton F. W. Larson

University of California, Davis – School of Law

January 12, 2015

UC Davis Legal Studies Research Paper No. 415

Abstract:

In 1919, Justice Oliver Wendell Holmes introduced the specter of a man falsely shouting fire in a theater into First Amendment law. Nearly one hundred years later, this analogy remains the most enduring analogy in constitutional law. It has been relied on in hundreds of constitutional cases and it has permeated popular discourse on the scope of individual rights.

This Essay examines the both the origins and the later life of Holmes’s theater analogy. Part One is a detective story, seeking to solve the mystery of how Holmes came up with this particular example. This story takes us to the forgotten world of the late nineteenth and early twentieth centuries, when false shouts of fire in theaters were a pervasive problem that killed hundreds of people both in the United States and Great Britain. The person who shouted “fire” in a crowded theater was a recognizable stock villain of popular culture, condemned in newspapers, magazines and books from coast to coast. The analogy, lifted by Holmes from a federal prosecutor in Cleveland, was rooted in this larger world of popular culture. Understanding this world also answers another question: Why do lawyers and non-lawyers alike refer to “shouting fire in a crowded theater” rather than “falsely shouting fire in a theater and causing a panic,” which is what Holmes actually wrote? Along the way, we will encounter a real detective and even a mustachioed villain.

Part Two is based on an empirical study of the 278 subsequent judicial opinions that employ the theater analogy. In lower courts, opinions that invoke the analogy, not surprisingly, typically reject free speech claims, but opinions that paraphrase Holmes are, counter-intuitively, more receptive to free speech claims than opinions that quote Holmes precisely.

The Essay concludes by noting that the theater analogy has largely lost its capacity to frighten in the visceral way that Holmes’s audience would have understood it. Although it persists in constitutional law, it has become rarified and largely abstract, perhaps contributing in some small way to the general libertarian trend of modern First Amendment law.

‘Shouting Fire In A Theater’: The Life And Times Of Constitutional Law’s Most Enduring Analogy – Introduction

When I introduce the subject of free speech to my law students, I ask them to provide examples of speech that is obviously unprotected by the First Amendment. Inevitably, one of the first answers is “shouting fire in a crowded theater.” I follow up by asking, “Suppose there is a fire in the theater. Could you shout ‘fire’ then?” and the student usually answers “yes.”

I then tell the students that this image comes from Justice Oliver Wendell Holmes’s opinion in the 1919 case of Schenck v. United States, in which the Court unanimously upheld a conviction under the Espionage Act for distributing flyers opposed to the draft. Justice Holmes wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

My students nonetheless instinctively paraphrase Holmes’s words as “shouting fire in a crowded theater.” They are not alone. A Google search reveals over 200,000 hits for “shouting fire in a crowded theater,” but only 53,000 hits for the Holmes version. Just one year after Schenck, United States Attorney General Mitchell Palmer, in congressional testimony, claimed, “A man may say what he will, as has often been said; but if he cries ‘fire’ in a crowded theater, with the intent to injure the people there assembled, certainly his right of free speech does not protect him against the punishment that is just desert.” Two years after Schenck, an article in a legal periodical claimed, “A man has no right to shout ‘fire’ in a crowded theatre, to use a familiar illustration.” Even the United States Supreme Court has referred to shouting “fire in a crowded theater.”

On a conceptual level, however, the Holmes version and the paraphrase differ in three significant ways. First, Holmes includes the critical element of falsity, which the paraphrase omits. A person shouting “fire” in response to a real fire (or shouting “fire” as part of his or her lines onstage) presents very different issues than a person deliberately making a false statement. Second, the paraphrase requires the theater to be crowded. But why does the theater need to be crowded for the speech to be unprotected? A false shout of fire that disrupts a performance causes harm to the theater owner and poses risks to the attendees even if only four people are in the audience. Third, Holmes refers to “causing a panic,” thus suggesting a requirement of actual harm, whereas the paraphrase does not. Thus, falsely shouting fire in an entirely empty theater might not give rise to legal liability.

Shouting Fire In A Theater

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