Yes, Virginia, You Can Yell "Fire" in a Crowded Theater

As it turns out, one actually can lawfully “yell ‘fire’ in a crowded theater,” the traditional example of a limitation of free speech protections under the First Amendment to the U.S. Constitution.

When U.S. politicians support arguments for greater censorship, they often argue that such First Amendment rights are restricted. The common refrain is that one cannot “yell ‘fire’ in a crowded theater” or that “misinformation” or “hate speech” are similarly not protected.

But many would argue such interpretations are indeed calls for restrictions (violations) of the First Amendment to the U.S. Constitution. Since the time of the Supreme Court’s Schenck v. U.S. decision, where the phrase “shouting ‘fire’ in a crowded theater first emerged, courts have ruled that incendiary, distasteful, rude speech actually is protected.

Perhaps the clearest clarification of Schenck is Brandenburg. Unless immediate illegal action is intended and likely, even “yelling ‘fire’ in a crowded theater” is protected speech. 

The other obvious problem is that “misinformation” or “hate speech,” even if odious, inflammatory or believed to be false, still is protected speech. Ideas “one hates” remain the test of free speech protections. 

Case	Year	Ruling Summary	Relation to 'Yelling Fire' Metaphor
Schenck v. United States	1919	Upheld conviction for distributing anti-draft pamphlets during WWI. Established that speech presenting a "clear and present danger" could be restricted.	Justice Holmes introduced the famous metaphor of falsely shouting "fire" in a crowded theater.
Abrams v. United States	1919	Upheld convictions under the Espionage Act for distributing anti-war leaflets.	Built upon the "clear and present danger" standard, but Holmes dissented, moving towards more speech protection.
Gitlow v. New York	1925	Upheld conviction of a socialist for advocating the violent overthrow of the government.	Suggested that even speech not directly causing harm could be limited if it had the potential to incite violence.
Dennis v. United States	1951	Upheld convictions of communist leaders advocating for the violent overthrow of the U.S. government.	Argued that advocating dangerous ideas, even without immediate action, could be restricted.
Yates v. United States	1957	Ruled that advocating abstract doctrine (such as communism) is protected speech, unless it incites illegal action.	Limited previous rulings, clarifying that abstract ideas are protected unless linked to action.
Brandenburg v. Ohio	1969	Overturned conviction of a KKK leader for inflammatory speech. Held that speech is protected unless it incites imminent lawless action.	Effectively replaced the "fire in a crowded theater" metaphor. Protected even dangerous speech unless immediate illegal action is intended and likely.
Texas v. Johnson	1989	Ruled that flag burning constitutes protected free speech under the First Amendment.	Protected highly offensive speech, further distancing from "fire in a theater" metaphor.
Snyder v. Phelps	2011	Protected Westboro Baptist Church's right to protest at military funerals, ruling that offensive speech on public issues is protected.	Even offensive and distressing speech was deemed protected. Shows broad protection for public speech.

The phrase "freedom for the idea one hates" is closely associated with Justice Oliver Wendell Holmes and Justice Louis Brandeis, two influential figures in the development of free speech jurisprudence in the early 20th century. 

In his famous dissent in United States v. Schwimmer (1929), Holmes said "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."

The point is that free speech requires freedom for “highly offensive” or “controversial” speech. Without tolerance for such speech, the government could censor any speech that threatens its interests.

The phrase "Yes, Virginia" The phrase "Yes, Virginia" comes from a famous editorial published in The New York Sun on September 21, 1897, in response to a letter from an 8-year-old girl named Virginia O'Hanlon. Virginia had written to the newspaper asking whether Santa Claus really existed, because some of her friends had told her he did not.

Her letter read:

"Dear Editor: I am 8 years old.
Some of my little friends say there is no Santa Claus.
Papa says, 'If you see it in The Sun, it’s so.'
Please tell me the truth, is there a Santa Claus?"

The editorial was written by Francis Pharcellus Church, a veteran journalist. His response, titled "Yes, Virginia, there is a Santa Claus," became one of the most famous newspaper editorials in American history.