I have been hearing the phrase, "shouting fire in a crowded theatre" a lot in the last week. This popular turn of a phrase comes from Justice Oliver Wendall Holmes, Jr., one of america's greatest legal minds ever, in the Schenck v. United States of 1919.
In this case a unanimous court ruled that passing out flyers opposing the military draft during World War I was not protected speech because it posed a clear and present danger to the government's war time recruiting efforts.
"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater 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."
It is interesting to see how far our "judicial activists" have taken us down the path of free speech. Ninety years ago, much of the language that today passes for political speech would be considered unprotected under the Schenck standard. Can you imagine the response if the government today attempted to pass a law making anti-war or anti-healthcare reform literature illegal? We've come a long way.
The court later overturned Schenck in Brandenburg v. Ohio . Today the government must show that the speech it seeks to limit would "incite imminent lawless action." Still, I'd like to hear more balanced political speech that did not push the limits of incitement.
