“You can’t shout fire in a crowded theater!” In current debates about misinformation and “fake” news, the phrase is everywhere. Experts and ordinary people alike proclaim it as a legal basis to justify government censorship. Where did this phrase come from? Does it, and did it ever, mean what people claim? The phrase actually originates from a Supreme Court case that had nothing to do with theaters, fire, or crowds. In 1917, Congress passed the Espionage Act which made it a criminal offense to spread false information that could undermine war efforts in the United States. In the 1919 case Schenk v. United States, Charles Schenk was charged with distributing pamphlets that criticized the military draft. The Court unanimously upheld the conviction and Justice Oliver Wendell Holmes wrote the opinion which proposed a “clear and present danger” test: “We admit that, in many places and in ordinary times, the defendants, in saying all that was said in the circular, would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done… The most stringent protection of free speech would not protect a man from falsely shouting fire in a theater and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger…” The example of “falsely shouting fire in a theater” is not an important or necessary part of the opinion, nor is it referring to any actual legal precedent. The point of the clear and present danger test was not even to censor speech but rather to bolster the argument that the government could punish someone for undermining national security efforts. The phrase “Shouting fire in a crowded theater” has since taken on a life of its own. Although it’s not used much in Supreme Court opinions, it does appear in lower court decisions, particularly dissents. Politicians, journalists, and average voters claim it as a reason to allow speech censorship. But the First Amendment broadly protects almost all speech with a few very narrow exceptions for defamation and obscenity. Spreading misinformation might be objectionable but it’s not illegal. Automatic punishment for “shouting fire in a crowded theater” is not, and was never, the law of the land. In 1969, the Supreme Court explicitly overruled the original Schenk ruling and the “clear and present danger” standard. In Brandenburg v. Ohio, the Court ruled that the government cannot censor misinformation or force others to do so unless it is unquestionably clear that the speech will directly cause someone to break the law. You might not like the latest conspiracy theory on the internet or a journalist who omits relevant information, but that doesn’t make their actions illegal.