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4.2.12
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lately become —despite, perhaps even because of, the frequency and promiscuousness of its invocation — little more than a caricature of logical argumentation. From the beginning of my career as a First Amendment lawyer, I have taken aim at this analogy, both in my writings and in my cases. In my view, it is one of the least persuasive, though most influential, arguments for censorship that ever came from anyone’s pen!

The case that gave rise to the “Fire!”-in-a-crowded-theater analogy— Schenck v. United States— involved the prosecution of Charles Schenck, who was the general secretary of the Socialist Party in Philadelphia. In 1917 a jury found Schenck guilty of attempting to cause insubordination among soldiers who had been drafted to fight in the First World War. He had circulated leaflets urging draftees not to “submit to intimidation” by fighting in a war being conducted on behalf of “Wall Street’s chosen few.” Schenck admitted that the intent of the pamphlet’s “impassioned language” was to “influence” draftees to resist the draft. Nothing in the pamphlet suggested that the draftees should use unlawful or violent means to oppose conscription. As Justice Holmes found: “In form at least [the pamphlet] confined itself to peaceful measures, such as a petition for the repeal of the act” and an exhortation to exercise “your right to assert your opposition to the draft.” Many of the pamphlet’s words were quoted directly from the Constitution. It would hard to _______. A clear case of petitioning one’s government for a redress of grievances, which is explicitly protected by the worlds of the First Amendment.

Holmes also acknowledged that “in many places and in ordinary times the defendants, in saying all that was said in the circular, would have been within their constitutional rights.” “But,” he added, “the character of every act depends upon the circumstances in which it is done.” And to illustrate that truism he went on to say, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic.”

Justice Holmes upheld the convictions, finding that the pamphlet created “a clear and present danger” of hindering the war effort while our soldiers were fighting for their lives and our liberty.

The example of shouting “Fire!” obviously bore little relationship to the facts of the Schenck case. The Schenck pamphlet contained a political message—a series of ideas and arguments. It urged its draftee readers to think about the message and then — if they so chose — to act on it in a lawful and nonviolent way. The man who shouts “Fire!” in a theater is neither sending a political message nor inviting his listener to think about what he has said and decide what to do in a rational, calculated manner. On the contrary, the message is designed to force action without contemplation. The shout of “Fire!” is directed not to the mind and the conscience of the listener but, rather, to his adrenaline and his feet. It is a stimulus to immediate action, not thoughtful reflection.

29 The core analogy is the nonverbal alarm, and the derivative example is the verbal shout. By cleverly substituting the derivative shout for the core alarm, Holmes made it possible to analogize one set of words to another—as he

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