A recent letter to the editor in The News & Observer discussed an incident at N.C. State University. Four students painted racist messages about Barack Obama in the Free Expression Tunnel on campus, setting off a debate over the limits of the First Amendment.
Here’s what the “nut graf” of the letter says:
I cherish the First Amendment as much as anyone and more than many. But in some cases, speech can and does equal shouting fire in a crowded theater. In those cases, institutional restraints may be justified.
Actually, the Constitution protects the right of someone who yells fire in a crowded theater, provided that there is indeed a fire. That’s the distinction the Supreme Court made in 1919. As Oliver Wendell Holmes wrote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.
The key word here is “falsely.” Yes, the word is often dropped when people quote Holmes. But it’s an important distinction and a piece of legal history that should be quoted accurately.
More on the “fire” analogy and the case behind it here.