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4.2.12
WC: 191694

2. Fighting Words: Speech that is so offensive to some that it may cause those who hear it to react violently. This includes racial or religious epithets hurled at minorities.
3. Criminogenic speech: Violent sexualized images that may cause, directly or indirectly, such harms as rape or sexual harassment.
4. Disclosure of information that may harm the nation or individuals. This includes military and diplomatic secrets, and other information that the government or individuals may have a right to keep from the public. It may also include disclosure of personal information that may embarrass individuals.
5. Defamatory speech: Expressions that libel, slander or harass others, by conveying false or ridiculing information about them.
6. Incitements: Expressions that are calculated to incite others to commit violent or other illegal actions.
7. Disruptions: Expressions that are designed to disrupt speakers or otherwise prevent opposing views from being expressed or heard.28

These alleged harms sometimes overlap, as with obscenity which may offend and also cause violence against women, or racist speech which may both offend and provoke violence.

In the pages to follow, I will recount my experiences—both professional and personal—with each of those purported exceptions to the First Amendment. I will describe how the First Amendment has changed over the half century I have been litigating freedom of expression cases. In some instances, these exceptions have been narrowed, while in others they have been expanded. I will begin by exploring the roots and rationality of the “mother” of all exceptions to the First Amendment: “Falsely shouting fire in a theater.” This metaphor has been invoked to justify censorship in nearly all of my cases: pornography, revealing state secrets, defamation, ridicule, incitement and fighting words. Those advocating censorship generally argue that these exceptions “are just like shouting fire in a theater.” It is important, therefore, to consider whether this paradigm has a strong enough foundation to support the many exceptions to freedom of expression that purport to rest on it.

Shouting Fire: The mother of all exceptions to the First Amendment

Justice Oliver Wendell Holmes’ statement that freedom of speech does not protect someone who falsely shouts “fire” in a theater has been invoked so often, by so many people, in such diverse contexts, that it has become part of our national folk language. It has even appeared —most appropriately — in the theater: In Tom Stoppard’s play Rosencrantz and Guildenstern Are Dead, a character shouts at the audience, “Fire!” He then quickly explains: “It’s all right — I’m demonstrating the misuse of free speech.”

Shouting “Fire!” in the theater may well be the only jurisprudential analogy that has assumed the status of a folk argument. A prominent historian has characterized it as “the most brilliantly persuasive expression that ever came from Holmes’ pen.” But in spite of its hallowed position in both the jurisprudence of the First Amendment and the arsenal of political discourse, it is and always was an inapt analogy, even in the context in which it was originally offered. It has

28 An additional, quite controversial, mechanism involves the financing of political campaigns. See Citizen’s United Case [cite]. I have not yet litigated cases in this area.

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