Bored to the point of praying for death from a lightning strike in the latter half of the Vice Presidential debate last night, an exchange between Republican J.D. Vance and Democrat Tim Walz woke me up:

VANCE: You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use…

WALZ: Or threatening. Or hate speech.

VANCE: …the power of the government to use Big Tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this political moment… Let’s persuade one another. Let’s argue about ideas and come together afterwards.

WALZ: You can’t yell “Fire!” in a crowded theater. That’s the test. That’s the Supreme Court test!

The “You can’t yell ‘Fire!’ in a crowded theater” saw is not only wrong, it’s the most overused anti-speech argument of our era, surpassing even the Karl Popper “Paradox of Tolerance” cartoon that was once meme legend. In 2012, the ACLU’s Gabe Rothman wrote that the “Fire!” bit was “worse than useless in defining the boundaries of constitutional speech.” Lawyers and civil liberties activists are in danger of self-harm every time it’s mentioned. “My head hits my desk every time the ‘shouting fire’ canard is trotted out. I think I have a permanent bruise on my forehead because of it,” says Nico Perrino of the Foundation of Individual Rights and Expression, who adds the damage might prevent him from knowing how many times it’s happened.

The “Fire” saw is one of those unkillable nuggets of received wisdom blurted out by people with at least three drinks in them, repeated as fact by a Vice Presidential candidate. Why?

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