With Friends Like These

Ask anyone to give an example of speech unprotected by the First Amendment, odds are one of the first answers you’ll get is “shouting ‘fire’ in a crowded theater.” That’s the accepted standard for limiting speech.

But what if there is a fire in the theater? Can you shout “fire” then? Well, of course. Goes to show how squishy some accepted standards are, how little consideration we give to the legal and practical boundaries around the First Amendment, how little thought we give to the five precious freedoms those 45 words bestow on us.

The standard was set in 1919 when the U.S. Supreme Court unanimously upheld a conviction under the Espionage Act. In that ruling, Justice Oliver Wendell Holmes wrote: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Note the nuance that has been largely lost in translation over the course of the last century. First Amendment protection does not extend to someone falsely shoutin…