Fire in a Crowded Theater

“You can’t yell ‘fire’ in a crowded theater” is one of the most commonly used First Amendment catchphrases -- but does it really support exceptions to free speech? The answer to this question can be found in the writings of Supreme Court Justice Oliver Wendell Holmes. He penned the phrase in 1919, not to justify moderate limits on speech, but to justify government prosecution of those speaking out against the draft.

In this episode of Make No Law, the First Amendment Podcast by Popehat.com, host Ken White explores the origins of the phrase “You can’t yell ‘fire’ in a crowded theater” and whether or not it actually calls for exceptions to the First Amendment. Featured guests include history professor Michael Kazin, who shares his knowledge of the WWI effort and the resulting tension, and author Nat Brandt, who expands on what made fire in a theater such a powerful analogy. Ken also discusses the Espionage Act of 1917 and the role of Oliver Wendell Holmes in the history of free speech.