Wonderful essay by Corey Robin on the provenance of the "shouting fire in the theater " meme.
Schenck was the general secretary of the Socialist Party in Philadelphia during the First World War. Unlike their sister parties in Western Europe, America’s Socialists firmly opposed the war, even after the United States entered it in April 1917. That summer, Schenck and his Philadelphia comrades launched a campaign against the draft. They composed a two-sided leaflet that attacked the draft as unconstitutional and called for people to join the Socialist Party and persuade their representatives in Congress to repeal it. If the leaflet’s language was strong—“a conscript is little better than a convict…deprived of his liberty and of his right to think and act as a free man”—it was also conventional, couched in a vernacular many would have found familiar. One side proclaimed “Long Live
the Constitution of the United States.” The other urged people to “Assert Your Rights!”
^^^ CB: The First Amendment was voted into the Constitution in 1787 or so. The _Schenck_ case of 1919 is the first time the US Supreme Court took up the issue of Freedom of Speech protected from prosecution by the First Amendment. In that case, the Great Liberal Mr. Justice Holmes found AN EXCEPTION to protection of speech of the socialists who were urging workers not to fight in the capitalists' World War I. The very first case was an exception, not a defense of free speech. That is why Holmes used the metaphor of crying fire falsely in a crowded theatre , because it is clear to people that such speech is not protected from prosecution by the First Amendment. For other famous words, Holmes found that Schenck's speech created a "clear and present danger" to the government.
Eugene V. Debs was emprisoned under a similar statute against speech that urged avoiding the draft.
Several years later, the other great Civil Liberarian on that Court, Mr. Justice Brandeis, found another exception to Free Speech, and upheld the criminal conviction of a woman Communist. Brandeis had the gall to write a paen to free speech ( as my Constitutional Law professor put it), a bunch of guff about the "marketplace of free ideas" and it is best to subject noxious doctrine to the light of day or other ideas, arguments, some such metaphor. and then he found the comrade didn't have free speech