09/25/2009 05:12 am ET Updated May 25, 2011

"The Free Speech Exception"

Free speech is a wonderful thing. When used responsibly. But right now, that's not happening. People are saying things, for example, about health care, that they know are not true, and nobody can stop them. You can challenge their arguments with evidence proving what they're saying is not true, but it doesn't help.

Because they won't listen.

But that's free speech for you. When you've got First Amendment protection, you can say pretty much anything.

There is one famous exception to the free speech protection. Something that, you say it, and you're in trouble. They had to have at least one free speech exception, something not protected by the First Amendment.


"So people will know we're serious."

"I see. So it's not like, 'You can say anything.'"

"Right. 'There's an exception.'"

"It show's that we've thought this through."


So they made an exception. Something you can absolutely not say. What is it? The free speech exception states that you are not permitted to yell "Fire!" in a crowded theater.

You can see where yelling "Fire!" in a crowded theater would be a bad idea. People would panic, there'd be trampling, chaos and more roasted theatergoers than might otherwise be necessary.

So they made that exception. Something you were forbidden to say, so a tragedy of that nature would never occur. Yell "Fire!" in a crowded theater, and no First Amendment protection for you, Mister. You're going straight to jail.

A fire in a crowded theater is not that frequent an occurrence. But at least it's something. And it may have broader implications, if it's applied metaphorically. Examples of which will not follow, because I can't think of any. Though I did hear a mention of it on. And there was nothing on fire.

To be honest, I'm a little confused about the "'Fire!' in a crowded theater' exception. Is the restriction against yelling "Fire!" in a crowded theater limited to when there isn't a fire? Or are you not allowed to yell "Fire!" in a crowded theater even when there is a fire? I'm kind of fuzzy on that point. Does the "No yelling 'Fire!'" rule apply to just one situation, or is it both?

What I'm wondering is, why is it wrong to yell "Fire!" in a crowded theater when there's actually a fire? What are you supposed to do? Pass a note?"

"There's a fire in the theater. Pass it on."

If there's a fire in a theater I happen to be sitting in, I would definitely want to know about it. So I can make immediate plans to get out of there. To me, if someone knew there was a fire in the theater I was sitting in and they didn't say anything, I would be really angry.

"You knew there was a fire and you didn't say anything?"

"I couldn't. Free speech exception."

"All right."

I don't know, maybe you can yell "Fire!" when there's actually a fire, or at least make some kind of announcement. Which then leaves the "crowded theater" issue. I mean, what constitutes a "crowded theater?" Does it have to be a sellout? Almost full, with a couple of celebrity "no shows" who got a better offer at the last minute? Full except for those private boxes up on the side, like where Lincoln got shot? I mean, who wants to sit there?

Say there's this half-filled theater. The play's okay, but it could use stronger casting, richer production values, and a rewritten entire script. Maybe you couldn't get into the big hits. You love the theater. So you took what you could get.

If the theater's not crowded, can they yell "Fire!" there?

Whether there's a fire there or not?

I wanted to talk seriously about the First Amendment. Bu I guess I'm not smart enough. It's a very important issue. Right now, the protected right of free speech is being marshaled against reason and possibility. And that's sad.

I wanted to write about free speech, and what I ended up writing was silliness.

Good thing that there's no free speech exception for that.

Earl Pomerantz's blog can be reached at