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

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.