Internal files released by Twitter last year document instances when the company
rejected requests from the government. Credit...Jim Wilson/The New York Times
Fire in the theater, the defining limit to the 1st Amendment regarding the
dissemination of false information, is under fire.
A history lesson ...
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.
The descent into partisan politics is inevitable ...
At the Centers for Disease Control and Prevention, officials held “weekly sync” meetings with Facebook, once emailing the company 16 “misinformation” posts. And in the summer of 2021, the surgeon general’s top aide repeatedly urged Google, Facebook and Twitter to do more to combat disinformation.
The examples are among dozens of interactions described in a 155-page ruling by a federal judge in Louisiana, who on Tuesday imposed temporary but far-reaching limits on how members of Mr. Biden’s administration can engage with social media companies. The government appealed the ruling on Wednesday.
The case is a flashpoint in the broader effort by conservatives to document what they contend is a liberal conspiracy by Democrats and tech company executives to silence their views. It taps into fury on the right about how social media companies have treated stories about the origins of Covid, the 2020 election and Hunter Biden, the president’s son.
The final outcome could shape the future of First Amendment law in a rapidly changing media environment and alter how far the government can go in trying to prevent the spread of potentially dangerous information, particularly in an election or during emergencies like a pandemic.
The government’s actions at the heart of the case were intended largely as public health measures. But Tuesday’s order instead viewed the issue through the filter of partisan culture wars — asking whether the government violated the First Amendment by unlawfully threatening the social media companies to censor speech that Mr. Biden’s administration found distasteful and potentially harmful to the public.
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