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4.2.12
WC: 191694

Analogies are, by their nature, matters of degree. Some are closer to the core example than others. But any attempt to analogize political ideas in a pamphlet, ugly parody in a magazine, offensive movies in a theater, controversial newspaper articles, or any of the other expressions and actions cataloged above to the very different act of shouting “Fire!” in a crowded theater is either self-deceptive or self-serving.

Abbie Hoffman, on whose Chicago conspiracy case I worked, once described an occasion when he was standing near a fire with a crowd of people and got in trouble for yelling “Theater, theater!” That, I think, is about as clever and productive a use as anyone has ever made of Holmes’s flawed analogy. And it is about the right level of logical response Holmes’s silly argument deserves.

In a 1989 article I wrote criticizing the Holmes Analogy, I concluded with the following plea: “Let us hear no more nonsensical analogies to shouting fire in a crowded theater. Those who seek to censor speech will just have to come up with a somewhat more cogent illustration — one that bears at least some relationship to real speech.” And so, with that in mind, I will turn to the other commonly offered exceptions to the First Amendment, some of which are quite compelling, others less so. In each instance, I will focus on cases I have litigated challenging the exception.

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