4.2.12 WC: 191694 high authority of the great Justice Oliver Wendell Holmes. I have rarely heard it invoked in a convincing, or even particularly relevant, way. But that, too, can claim lineage from the great Holmes. In the coming pages I will describe a series of pornography cases I have litigated. In several of them, those advocating censorship have cited a state supreme court that held that “Holmes’ aphorism . . . applies with equal force to pornography.” Another court analogized “picketing . . . in support of a secondary boycott” to shouting “Fire!” because in both instances “speech and conduct are brigaded.” A civil rights lawyer, in a New York Times op-ed piece, analogized a baseball player’s bigoted statements about blacks, gays, and foreigners to shouting fire in a crowded theater. I responded with my own op-ed, disputing the analogy. The Reverend Jerry Falwell, in arguing that the First Amendment doesn’t protect a parody of him having drunken sex with his mother, invoked the Holmes example: “Just as no person may scream ‘Fire!’ in a crowded theater when there is no fire and find cover under the First Amendment, likewise, no sleazy merchant like Larry Flynt should be able to use the First Amendment as an excuse for maliciously and dishonestly attacking public figures, as he has so often done.” In the famous Skokie case, in which I supported the right of neo-Nazis to march through a heavily Jewish Chicago suburb, one of the judges argued that allowing Nazis to march through a city where a large number of Holocaust survivors live “just might fall into the same category as one’s ‘right’ to cry fire in a crowded theater.”*° Some close analogies to shouting “Fire!” or setting off an alarm are, of course, available: calling in a false bomb threat; dialing 911 and falsely describing an emergency; making a loud, gunlike sound in the presence of the president; setting off a voice-activated sprinkler system by falsely shouting “Fire!” (or any other word or sound). In