Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and the simple quip just is not an accurate statement about how Free Speech works in Am

Justice Holmes later back-pedaled quite a bit on the fire/theater thing, and the simple quip just is not an accurate statement about how Free Speech works in America. From another Popehat post (Ken's really serious about this stuff, and goes to great lengths to explain it), talking about Holmes's evolved jurisprudence years after making the fire/theater statement. Quoting: Holmes' Repentance — Too Little, Too Late Conventional wisdom says that Holmes rethought his broad support of censorship when he grasped how open-ended it truly was. The next trilogy of cases before the Supreme Court, starting in late 1919, is consistent with that view. Holmes dissented repeatedly as the Supreme Court reaped what he had sown. ... Holmes, a regretful Dr. Frankenstein struggling against his creation [that is, the fire/theater comment], dissented. He first offered what in my opinion is a disingenuous and utterly unconvincing attempt to distinguish the case from Schenck, abruptly discovering fastidiousness about proof that expression actually has a tendency to cause lawbreaking ... The damage Holmes inflicted — the malleable and unprincipled standard of censorship he drafted — was not thoroughly rebuffed until a half-century later. Brandenburg v. Ohio states the modern standard http://popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/ http://popehat.com/2012/09/19/three-generations-of-a-hackney...