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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 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 Article examines both the origins and the later life of Holmes’s theater analogy. Part I 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, where 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, which would have understood the analogy as shorthand for stupid, harmful speech. Recovering this forgotten 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 II is based on an empirical study of the 278 subsequent judicial opinions that employ the theater analogy. Among other findings, this Article shows that the Supreme Court has rarely employed the analogy in majority opinions, but it has flourished in concurring and dissenting opinions. In lower courts, use of the analogy is increasing. 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.

This Article 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.

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