Originally posted to an older blog on 11 May 2015, reproduced here after that blog closed.
A. Times where you can shout “fire!” in a crowded theater.
- The theater is on fire.
- You are an actor performing in the theater, and the script calls for it.
- You’re a singer in a band singing a song where you shout “fire!” (e.g., R.E.M.’s “The One I Love,” the Crazy World of Arthur Brown’s “Fire,” etc.), or a fan in the audience who likes to sing along.
- You see another threat that necessitates evacuation of the theater, and you shout “fire!” because explaining what is actually happening would be too difficult.
- You say it in such a way that it does not cause others to panic.
- You are watching a movie where a character contemplates whether or not to shoot someone, and you’ve made up your mind and want the world to know it. (But see part C.1.)
B. Times where you can probably shout “fire!” in a crowded theater.
- You reasonably believe it will not cause others to panic, even if it does.
- You hear someone else shout “fire!” and you repeat it, believing there to be a fire, even if there isn’t one.
- You say it in such a way that a reasonable listener would know not to panic, even if unreasonable listeners do.
- Pending current cases before the Supreme Court, you subjectively believe that it will not cause others to panic.¹
C. What your right to shout “fire!” in a theater probably does not protect you from.
- Someone calls you a jerk for shouting fire when there wasn’t one.
- All of social media calls you jerk after the video of you shouting “fire!” goes viral.
- The theater kicks you out for being that guy who keeps shouting “fire!” for no clear reason.
- People use your situation as an excuse to misquote ancient caselaw, in order to either claim your actions were outside the First Amendment or that free speech doctrine shouldn’t extend to your conduct.
For the non-listicle discussion, see Popehat.
[¹ when written this was a nod to United States v. Elonis, which ended up being decided on statutory grounds.]