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"Shouting 'Fire' In A Theater": The Life And Times Of Constitutional Law's Most Enduring Analogy, Carlton F.W. Larson
"Shouting 'Fire' In A Theater": The Life And Times Of Constitutional Law's Most Enduring Analogy, Carlton F.W. Larson
William & Mary Bill of Rights Journal
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 …