"The Walz/Vance VP debate is another reminder it’s time to extinguish the ‘fire in a crowded theatre’ trope"

"[Last night's] Walz/Vance VP debate [is] another reminder it’s time to extinguish the ‘fire in a crowded theatre’ trope. People keep citing the phrase — incorrectly — to justify censorship. Please stop. ...
    "In a discussion about the riot at the U.S. Capitol on Jan. 6, 2021, Walz told Vance: 'You can’t yell fire in a crowded theatre. That’s the test, that’s the Supreme Court test.' ...
    "The phrase comes from Justice Oliver Wendell Holmes’ 1919 opinion in Schenck v. United States, and it’s a testament to the power of a well-turned phrase that we’re still hearing it more than a hundred years later. ...

    "So what exactly did Schenck do to deserve a unanimous Supreme Court decision against him?
He wrote and distributed a pamphlet urging Americans to peacefully resist being drafted to fight in World War I. That’s it. That’s all he did. ... For this, Schenck was convicted of three counts of violating the Espionage Act of 1917 and served six months in jail. ... His words were declared, in another phrase that would cause many more problems than it solved, a 'clear and present danger.' ...
    "The true insidiousness of the 'fire in a crowded theatre' phrase is the way that, from the very beginning, it has been wielded to justify censorship of a broad range of speech that has nothing to do with fires or theatres. ....
    "Immediately following World War I, Schenck evidently seemed justified, but it seems nuts to us now because it is nuts. This realisation began to dawn on Justice Holmes [and the Supreme Court] rather quickly. ... [In several] landmark free speech cases ... the Court made it clear that it would not be punishing pamphleteers again any time soon.
    "Finally, in 1969 ... the Supreme Court pulled the plug on Schenck. Discarding its 'clear and present danger' test, the court replaced it with a new test for unlawful incitement: to be punishable, speech must be 'directed to inciting or producing imminent lawless action' and be 'likely to incite or produce such action.' Schenck’s 'dangerous' exhortation to write your congressman — a perfectly legal and democratic activity — would never qualify.
    "That was 55 years ago. So the 'fire in a crowded theatre' analogy has been bad law for longer than it was good law. But its liberty-destroying legacy remains ..."

~ Robert Shibley, from his post 'Walz/Vance VP debate another reminder it’s time to extinguish the ‘fire in a crowded theatre’ trope'