US Supreme Court Never Decided A Legal Case About Falsely Shouting Fire In A Crowded Theater: Prohibited Speech Must Be Directed To And Likely To Incite Or Produce Imminent Lawless Action

 

From City Journal, "The “Shouting Fire” Pretext: A new book torches an old censorship canard." by Corbin K. Barthold:

“Fire in a crowded theater” does not come from a legal case involving fires or theaters. It comes, rather, from Schenck v. United States (1919), a case about a socialist arrested during World War I for peacefully protesting the military draft. The Supreme Court upheld his conviction. Along the way, Justice Oliver Wendell Holmes Jr. wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” This imaginary situation was used to show that the First Amendment retreats before a “clear and present danger” of speech “bring[ing] about the substantive evils that Congress has a right to prevent.”

The Court later tightened this test substantially, ruling in Brandenburg v. Ohio (1969) that, to lose First Amendment protection, dangerous speech must both aim at producing, and be likely to produce, imminent lawless action. Yet the flimsy “fire in a crowded theater” metaphor lives on. As [Jeff] Kosseff observes, the line “is used as a placeholder justification for regulating any speech that someone believes is harmful or objectionable.” For the would-be censor, the concept is wonderfully plastic: almost any speech can stand in for the shout in the theater.