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Is shouting 'fire' in a crowded theater protected free speech?

FIRE’s Nadine Strossen explains, “To the contrary, if the theater is on fire, you not only may shout ‘FIRE,’ but indeed, you should do so! The constant misstatement of this famous line from a 1919 Supreme Court decision is significant, because it overlooks the critical, common-sense distinction between protected and unprotected speech.

Back in 1919, the Supreme Court had not yet begun to meaningfully protect freedom of speech or other constitutional rights. Even today, though, while the Court strongly protects speech, it still allows government to restrict speech when it directly, imminently threatens serious harm — for example, to accurately quote the passage at issue, when someone ‘falsely shout[s] fire in a theatre and caus[es] a panic.’ In stark contrast, when the speech instead helps to prevent such imminent serious harm — for example, when someone truthfully shouts fire in a theater and therefore prompts people to escape — the speech is protected.

This famous but regularly misstated and misunderstood example underscores a key factor in distinguishing protected from punishable speech: The speech must be considered in its overall context. Government usually may not restrict speech solely based on the speech’s content or message — for example, because its content is disapproved or vaguely feared. Rather, government may restrict speech only when, under the circumstances, it directly threatens certain serious imminent harm, which can’t be averted through other measures. For example, government may not punish hate speech solely based on its hateful content. However, government may punish hate speech when, in the specific circumstances, it directly threatens serious imminent harm, such as intentionally inciting imminent violence that is likely to happen imminently.”

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