Even people who know about the First Amendment still have trouble believing that someone can make false, irresponsible, even dangerous statements without paying any penalty. For instance, when Francis Collins, the director of the National Institutes of Health, spoke with National Public Radio to promote COVID vaccinations and boosters just before Thanksgiving, he sharply criticized people who intentionally spread misinformation about the vaccine’s safety. “Isn’t this like yelling fire in a crowded theater?” he asked. “Are you really allowed to do that without some consequences?”
In fact, you usually are allowed to do that without fear of arrest, lawsuits, or other legal consequences. Shouting “Fire” in a crowded theater, a metaphor that dates to a 1919 Supreme Court ruling by Justice Oliver Wendell Holmes Jr., is widely—and wrongly—held to be a far-reaching exception to the First Amendment, which offers broad protection to free expression in the United States.
Courts have rigorously scrutinized government acts that might plausibly conflict with the amendment. But in common usage, shouting “Fire” in a crowded theater has become an all-purpose justification for regulating speech while evading judicial scrutiny. To my eyes, more commentators than ever are turning to this misplaced metaphor, perhaps because the proliferation of news outlets and the growth of social media expose audiences to more speech than ever before, and at least some of that speech is bound to be objectionable.
In the past year, some health experts have joined Collins in applying the metaphor to inflammatory propaganda against public-health measures during the pandemic. The national-security whistleblower Alexander Vindman used the crowded-theater trope to describe the Fox News host Tucker Carlson’s sympathetic portrayal of the January 6 rioters. Still others have categorized hate speech in a similar way. “When it comes to the amplification of hate, Big Tech is profiting off of yelling ‘Fire’ in a crowded theater,” the civil-rights advocate Rashad Robinson said at a House hearing in December. “And so I understand that we have these conversations about the First Amendment, but there are limitations to what you can and cannot say.”
The subtext of such statements is that certain speech is too harmful to ignore. But what exactly should be done about it? TV networks can opt not to show or discuss Carlson’s documentary, and privately operated online platforms can take down inflammatory misinformation and hate speech before it goes viral. Perhaps because Facebook and Twitter remove some false or misleading posts—while failing to remove others—these platforms have created the expectation that someone should step in. And the crowded-theater metaphor suggests that this someone is the government.
Read: It’s time to stop using the ‘fire in a crowded theater’ quote
In reality, though, shouting “Fire” in a crowded theater is not a broad First Amendment loophole permitting the regulation of speech. The phrase originated in a case that did not involve yelling or fires or crowds or theaters. Charles T. Schenck, the general secretary of the U.S. Socialist Party, was convicted in a Philadelphia federal court for violating the Espionage Act by printing leaflets that criticized the military draft as unconstitutional.
In a six-paragraph opinion issued on March 3, 1919, Just
