Shouting "Fire!"

by Alan M. Dershowitz

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When the Reverend Jerry Falwell learned that the Supreme Court had reversed his $200,000 judgment against Hustler magazine for the emotional distress that he had suffered from an outrageous parody, his response was typical of those who seek to censor speech: "Just as no person may scream 'Fire!' in a crowded theater when there is no fire, and find cover under the First Amendment, likewise, no sleazy merchant like Larry Flynt should be able to use the First Amendment as an excuse for maliciously and dishonestly attacking public figures, as he has so often done."

Justice Oliver Wendell Holmes's classic example of unprotected speech—falsely shouting "Fire!" in a crowded theater—has been invoked so often, by so many people, in such diverse contexts, that it has become part of our national folk language. It has even appeared—most appropriately—in the theater: in Tom Stoppard's play Rosencrantz and Guildenstern Are Dead a character shouts at the audience, "Fire!" He then quickly explains: "It's all right—I'm demonstrating the misuse of free speech." Shouting "Fire!" in the theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian recently characterized it as "the most brilliantly persuasive expression that ever came from Holmes' pen." But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and was an inapt analogy, even in the context in which it was originally offered. It has lately become—despite, perhaps even because of, the frequency and promiscuousness of its invocation—little more than a caricature of logical argumentation.

The case that gave rise to the "Fire!"-in-a-crowded-theater analogy—Schenck v. United States—involved the prosecution of Charles Schenck, who was