Shouting fire in a crowded theater

The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that directed to and likely to incite imminent lawless action (e.g. an immediate riot).

as speech is not itself the legally problematic event, but rather, "there are scenarios in which intentionally lying about a fire in a crowded theater and causing a stampede might lead to a disorderly conduct citation or similar charge.

[11] Federal prosecutor Edwin Wertz then argued in his closing rebuttal:[12] Now, he speaks about the Constitution of the United States giving him the authority to do what he did at Canton.

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.The First Amendment holding in Schenck was later partially overturned by Brandenburg v. Ohio in 1969, in which the Supreme Court held that "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Despite Schenck being limited, the phrase "shouting fire in a crowded theater" has become synonymous with speech that, because of its danger of provoking violence, is not protected by the First Amendment.

In the statute just cited, for example, it is a crime to knowingly cause "a false alarm of fire" to be transmitted to "any...government agency which deals with emergencies involving danger to life or property."

Christopher M. Finan, Executive Director of the National Coalition Against Censorship, writes that Justice Holmes began to doubt his decision due to criticism received from free-speech activists.

He also met the legal scholar Zechariah Chafee and discussed his Harvard Law Review article "Freedom of Speech in War Times".

[16][18] Chafee argued in Free Speech in the United States that a better analogy in Schenck might be a man who stands in a theatre and warns the audience that there are not enough fire exits.

Citing the later ruling of United States v. Stevens, White also pointed out that the currently accepted limitations to the First Amendment are narrow and well-defined, and the court is unlikely to introduce new ones based on balancing the value that some speech possesses with the potential harm it does to society.