Law & Liberty: Free Speech Beyond the Marketplace

In March 2020, Waylon Bailey posted on Facebook a joke about zombies, and how his local sheriff’s office in Forest Hill, Louisiana had orders to shoot the infected. Appealing to Brad Pitt’s character from World War Z, Bailey added the hashtag #weneedyoubradpitt. A few hours later, the sheriff’s office arrested him and charged him with terrorism under a state law that forbade spreading information with the intent of causing panic. The district court convicted Bailey and ruled that disseminating false information in the early days of the pandemic was like yelling “fire in a crowded theater.” (On appeal, the case was reversed, and, more recently, a jury awarded Bailey a sum of $205,000 in compensatory and punitive damages.)

These five little words, “fire in a crowded theater,” are invoked like a magical talisman to justify, by analogy, the regulation of false speech and lies. Just as you can’t say “fire in a crowded theater,” this [x] false speech must also be prohibited. Jeff Kosseff’s mission is to break the spell that “fire in a crowded theater” has over the mind of the public and demonstrate that it is a sloppy “placeholder justification” for the government regulation of false speech.

There are many good reasons, Kosseff argues, to protect much false speech—even lies and misinformation—and to keep in place high standards for defamation and liability. The problem is that most people only know “the marketplace of ideas” defense, which was popularized by Justice Oliver Wendell Holmes Jr. who endorsed “free trade in ideas” in Abrams v. US (1919). The “fire in a crowded theater” and the “marketplace of ideas” pushmi-pullyu is, in part, Holmes’ legacy. Less than a year before, in Schenck v. US, Holmes argued that the distribution of pamphlets that compared the draft to involuntary servitude during war was like “shouting fire in a theatre.”