The Schenck case
Holmes, writing for a unanimous Court, ruled that it was a violation of the
Espionage Act of 1917, (amended with 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 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. Holmes wrote of
falsely shouting fire, because, of course, if there were a fire in a crowded theater, one may rightly indeed shout "Fire!"; one may, depending on the law in operation, even be obliged to. Falsely shouting "Fire!" in a crowded theater, i.e. shouting "Fire!" when one believes there to be no fire in order to cause panic, was interpreted not to be protected by the First Amendment.
The First Amendment
holding in
Schenck was later
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). The test in Brandenburg is the current High 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 blatantly obvious.
