The other irony is that the holding of Schenk vs. United States was later overturned in Brandenburg vs. Ohio, which set the line for where free speech becomes unprotected at "inciting imminent lawless action":

https://en.wikipedia.org/wiki/Brandenburg_v._Ohio

Brandenburg overturned the specifics of Schenk, not the idea of free speech having limits. "There are valid limits of free speech" remains as true as ever.

I'd had a paragraph after that said "You can, in fact, yell "fire" in a crowded theater without breaking any laws", but edited it out because in certain situations this would also violate the revised test in Brandenburg (you still can't incite a riot legally, for example). But that paragraph made it a bit more clear that yes, the irony I'm talking about is that the specific examples in Schenk are no longer law, not the general principle that free speech has limits. The limits are significantly less restrictive than Schenk held, though.

You aren't aligning yourself with that by using the fire in a crowded room metaphor.

My point is that the phrase has a history of being used to criminalize speech that most people would now see as being worthy of protection. For those using it today, the burden is really on the accuser to show that they aren't doing the same.

The justice's analogy in that case was bad, but otherwise it would have been a good argument.

If speech is meant to directly lead to harm, it should be constrained.

I mean, I wouldn't use analogies that were originally created to target people who disagreed with the draft.

Whether or not the analogy applies now, is irrelevant. It's history makes it a bad analogy.

It'd be like saying stuff like "it's Ok to be white". It may be a true statement, but it was used by people who were trying to make racial attacks.

> I mean, I wouldn't use analogies that were originally created to target people who disagreed with the draft.

> Whether or not the analogy applies now, is irrelevant. It's history makes it a bad analogy.

I appreciate your motivation, but I just can't get behind this line of reasoning. For one thing, most people aren't aware of the history.

For another, almost every good idea has a tainted history. (e.g. the golden rule. "Eh that? That's just something that Jesus guy said, and look how many people his followers killed in the crusades, witch-hunts, etc.")

Lastly, it's just not a form of rational thinking. Obviously the connotations of our words matter, but unless we can separate the connotation from the denotation we have no hope of arriving at the truth.

In that case, wouldn't it be more that it isn't allowed to yell fire in a crowded theater with the express purpose to cause injury during a stampede? Would doing so "just as a prank bro" still be protected under American precedent?

I'm not a Constitutional or 1A scholar, but I believe the test remains whether the speech is substantially likely to result in "imminent lawless action". Whether you wanted people to get trampled, or just thought it was a lulz thing to do, exigently emptying a crowded room on false pretenses is probably going to yield some pretty lawless behavior.

EDIT: Even so, that test was IIRC conceived as a means of measuring whether political speech — specifically, advocating the use of force or criminal behavior — was 1A-protected, so I really wonder whether this line of thought isn't moot.

Wow, when did the internet figure that one out?