Shouting fire in a crowded theater

Holmes, writing for a unanimous Court, ruled that it was a violation of the Espionage Act of 1917 (amended by the Sedition Act of 1918), to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a "clear and present danger" to the government's recruitment efforts for the war. Holmes wrote:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

The First Amendment holding in Schenck was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action (e.g. a riot).[1] The test in Brandenburg is the current Supreme Court jurisprudence on the ability of government to proscribe speech after that fact. Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has since come to be known as synonymous with an action that the speaker believes goes beyond the rights guaranteed by free speech, reckless or malicious speech, or an action whose outcomes are obvious.

A version of Chafee's article

Christopher M. Finan, Executive Director of the National Coalition Against Censorship, writes that Justice Holmes began to doubt his decision due to criticism received from free-speech activists. He also met the legal scholar Zechariah Chafee and discussed his Harvard Law Review article "Freedom of Speech in War Times".[3][4] According to Finan, Holmes's change of heart influenced his decision to join the minority and dissent in the Abrams v. United States case. Abrams was deported for issuing flyers saying the US should not intervene in the Russian Revolution. Holmes and Brandeis said that "a silly leaflet by an unknown man" should not be considered illegal.[3][5] Chafee argued in Free Speech in the United States that a better analogy in Schenck might be a man who stands in a theatre and warns the audience that there are not enough fire exits.[6][7]

In his introductory remarks to a 2006 debate in defense of free speech, writer Christopher Hitchens parodied the Holmes judgement by opening "Fire! Fire, fire ... fire. Now you've heard it", before condemning the famous analogy as "the fatuous verdict of the greatly over-praised Justice Oliver Wendell Holmes." Hitchens argued that the socialists imprisoned by the court's decision "were the ones shouting fire when there really was a fire in a very crowded theatre indeed.... [W]ho's going to decide?"[8][9]